City of Wanneroo v Tah Land Pty Ltd - [2022] WASCA 53

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CITY OF WANNEROO -v- TAH LAND PTY LTD [2022] WASCA 53
CORAM:   QUINLAN CJ
BUSS P
BEECH JA

HEARD:   11 & 12 AUGUST 2021
DELIVERED          :   26 MAY 2022
FILE NO/S:   CACV 88 of 2020
BETWEEN:   CITY OF WANNEROO
Appellant
AND
TAH LAND PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   SMITH J
Citation: CITY OF WANNEROO v TAH LAND PTY LTD [2020] WASC 249
File Number            :   CIV 1322 of 2016

Catchwords:

Contract – Deed made between planning authority and developer to rezone, subdivide and transfer part of the land for a Community Purposes Site – Construction of Deed

Contract – Variation of contract – Whether agreement to defer performance – Implied terms – Performance within reasonable time – Whether planning authority entitled to call for performance

Legislation:

Local Government Act 1995 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	E M Heenan
Respondent	:	M O'Meara SC & M C Hotchkin

Solicitors:

Appellant	:	Castledine Gregory
Respondent	:	Hotchkin Hanly

Cases referred to in decision:

Astea (UK) Ltd v Time Group Ltd [2003] EWHC 725
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219
Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
City of Wanneroo v Tah Land Pty Ltd [2020] WASC 249
Electricity Generation and Retail Corporation trading as Synergy v EIT Kwinana Partner Pty Ltd (ACN 115 348 171) [2022] WASCA 3
Electronic Industries Ltd v David Jones Ltd [1954] HCA 69; (1954) 91 CLR 288
Ellmore (Maitland) Pty Ltd v Tull (1995) 7 BPR 14,305
Equus Financial Services Ltd v Beagle Holdings Pty Ltd [2002] WASCA 273
Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189
Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11,110
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23; (2008) 35 WAR 520
Peregrine Systems Ltd v Steria Ltd [2005] EWCA Civ 239
Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537
Rudi's Enterprises Pty Ltd v Jay & Ors (1987) 10 NSWLR 568
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89
Smart v Power [2019] WASCA 106
Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379
Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522
Wreford v Lyle [No 3] [2021] WASCA 20
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

Table of Contents

Introduction and overview

Background facts

Events prior to the creation of the Deed

Material terms of the Deed

Events following the creation of the Deed

Steps taken by Tah Land in 1993

1994 – the creation of a Civic Zone in the north‑east corner of the Land

1995 – Tah Land attempts to subdivide the Land

March to May 1996 – the parties correspond and trading commences at the shopping centre

November 1996 to 1999 – Tah Land attempts to engage with the City

2002 to 2004 – further development proposals

2005 to 2010 – further structure planning and negotiations with the City

November 2010 – ASP 59

2011 to 2014 – Tah Land applies to redevelop the shopping centre

2015 – further discussions about a proposed library

September 2015 – the City issues notice of default in relation to the Deed

2016 – the City issues a further notice of default and commences proceedings

2019 – the City elects to terminate the Deed and seek damages

The City's pleaded claim and the proceedings at trial

Primary reasons

Construction of the Deed

Variation of the Deed by the 1996 correspondence

What constitutes a reasonable time?

Whether a reasonable time had elapsed

Approbation and reprobation

Loss and damage

Grounds of appeal and notice of contention

Ground 1

The findings challenged by ground 1

Ground 1 – the parties' submissions

Ground 1 – the proper construction of the challenged findings

Ground 1 – the proper construction of the Deed

Ground 1 – materiality of any error

Ground 2(a)

Ground 2(a) – scope of the ground

Ground 2(a) – the parties' submissions

Ground 2(a) – disposition

Ground 2(b)

Ground 2(b) – the parties' submissions

Ground 2(b) – disposition

Overview of events
Ground 2(b)(i) – the purposes of the Deed
The unsuitability of Lot 59 as a community and civic site
Ground 2(b)(v) – no intention to use Lot 59 for a civic or community facility
Ground 2(b)(iii) – the City's failure to collaborate and its repeated declining to accept performance
Ground 2(b)(ii) – negotiations following 8 December 2015
Ground 2(b)(iv) – ASP 59
Conclusion on ground 2(b)

Outcome of the appeal

Notice of contention

Conclusion

JUDGMENT OF THE COURT:

Introduction and overview

On 2 September 1992, the City of Wanneroo (the City)[1] and Tah Land Pty Ltd (Tah Land) entered into a Deed (the Deed) relating to the proposed development of Land owned by Tah Land on Wanneroo Road, Landsdale. The Land, as defined in the Deed, was all of that land known as Lot 2 (being Lot 2 on Diagram 24051, and the whole of the land contained in Certificate of Title, Volume 1220, Folio 701) and Lot 3 (being Lot 3 on Diagram 24051, and the whole of the land contained in Certificate of Title, Volume 119, Folio 19A).
[1] In the course of the events the subject of the proceedings, as a consequence of changes made under the Local Government Act 1995 (WA), the City existed as two distinct corporate entities: what was referred to as the 'Old City' until 1 July 1998 and, after that date, what was referred to as the 'New City'. It was common ground that upon the disestablishment of the Old City and the re-establishment of the New City that the New City took over the rights of the Old City. It is unnecessary to draw any distinction between the two entities, which are both referred to as the City.
The proposed development of the Land included a variety of commercial uses, including a shopping centre. Critical to the proposed development was the rezoning of the Land to provide for, inter alia, commercial zoning over parts of the Land.
Pursuant to the Deed, Tah Land agreed to transfer to the City, for no cost, various parts of the Land for public purposes, including a portion of land for the construction of Hepburn Avenue, a portion of land for a pedestrian accessway and a portion of land required for a major intersection treatment at the north east corner of Wanneroo Road and Hepburn Avenue.
Relevant to this appeal, Tah Land also agreed to subdivide and transfer title to the City, for no cost, 1.5 ha of the Land described in the Deed as the Community Purposes Site (the Community Purposes Site). It is uncontentious that the terms of the Deed did not stipulate the precise location of the Community Purposes Site, but provided for its subsequent delineation in accordance with the Deed, although there was some debate as to the range of locations within which subsequent delineation was permissible.
The City's case at trial, which the learned trial judge accepted, was that the Community Purposes Site was subsequently delineated in a plan dated 8 August 1993 identified as SK6 (Plan SK6).[2] Plan SK6 depicted the Community Purposes Site as Lot 59 in the north‑east of the Land, as follows:
[2] The same area was also depicted on a plan identified as L01.
By its express terms, the Deed obliged Tah Land to take steps to have the Land rezoned and subdivided, and then to transfer the Community Purposes Site 'prior to the commencement of trading of any business on the Land'.
Trading commenced, with the opening of the Kingsway Shopping Centre, on or about 3 May 1996, and there was no dispute that Tah Land did not subdivide and transfer the Community Purposes Site prior to that time. Prior to the commencement of trading, the parties exchanged correspondence in March and April 1996 in relation to Tah Land's obligation to subdivide and transfer the Community Purposes Site. While the legal effect of that correspondence was and is contentious, there was and is no dispute that the parties proceeded upon the basis that Tah Land would be permitted to commence trading, notwithstanding that it had not subdivided the Community Purposes Site and transferred it to the City.
The City contended, at trial, that the effect of the correspondence in March and April 1996 was to vary the Deed by agreement such that Tah Land was obliged to perform its obligations under the Deed 'when required by the … City at any time in the future'.
The City brought an action against Tah Land in relation to its alleged obligations under the Deed. The City alleged that:
(a)by letter dated 27 February 2019, the City required Tah Land to perform its obligations to prepare a plan of subdivision to effect the subdivision and transfer of the Community Purposes Site by 12 April 2019;
(b)by letter dated 5 March 2019, and thereafter, Tah Land refused to perform its obligations as requested and thereby repudiated the Deed; and
(c)the City accepted Tah Land's repudiation of the Deed and terminated the Deed.
The City claimed damages for breach and repudiation of the Deed.
The trial of the City's action was heard by Smith J.[3]
[3] City of Wanneroo v Tah Land Pty Ltd [2020] WASC 249 (Primary reasons).
The learned trial judge rejected the City's case that the Deed was varied such that Tah Land was obliged to perform its obligations under the Deed when required by the City at any time in the future. Her Honour concluded that it could not 'be objectively found that there was an agreement reached that the City could call for Tah Land to subdivide and transfer the Community Purposes Site at any time in the future that the City required'.[4]
[4] Primary reasons [290].
The learned trial judge nevertheless considered what her Honour identified as an alternative (albeit not pleaded) case put by the City, namely that the parties' agreement to forego the time stipulation in the Deed ('prior to the commencement of trading of any business on the Land') gave rise to an implied term enabling the City to call upon Tah Land within a reasonable time to subdivide, and transfer to the City, the Community Purposes Site.[5]
[5] Primary reasons [262(b)].
While her Honour was satisfied that such a term should be implied following the parties' agreement to forego the time stipulation in the Deed, the learned trial judge concluded that 'the reasonable time for the City to call for Tah Land to subdivide and transfer to it the area of the Land depicted as Lot 59 on Plan SK6, had passed by the time the City, made a call for performance in 2019'.[6]
[6] Primary reasons [453].
The City's case at trial therefore failed and its claim was dismissed.
The City now appeals from the dismissal of its claim.
The grounds of appeal raise, in essence, three issues:
(a)whether the learned trial judge erred in concluding that, on the proper construction of the Deed, the City was only entitled to an area of the Land that is for the use of, and provision of, public civic uses (ground 1);[7]
(b)whether the learned trial judge erred in finding that, in the agreement found by her Honour to have been made in March and April 1996 to extend the time for performance, there was implied by law a term that the obligations need only be performed by Tah Land if the City called for performance within a reasonable time (ground 2(a)); and
(c)whether the learned trial judge erred in law and in fact in finding that more than a 'reasonable' period of time had passed by the time the City called for Tah Land to perform that task in 2019 (ground 2(b)).
[7] The conclusion in these terms appears at Primary reasons [200]. Ground 1 also challenges related statements in Primary reasons [442] and [486].
In responding to the appeal, Tah Land filed a notice of contention. Tah Land contended that the learned trial judge had erred in concluding that Lot 59 on Plan SK6 became the Community Purposes Site for the purposes of the Deed (contentions 1 and 2). It also contended that the learned trial judge erred in not concluding that the City's claim was precluded by the doctrine of approbation and reprobation by reason of it having approved an Agreed Structure Plan (ASP 59) which was adopted by the Western Australian Planning Commission in 2010 (contention 3).
This summary of the issues raised by the grounds of appeal and notice of contention is in general terms. We will return to the scope of each of the grounds of appeal and their interrelationship later in these reasons.
For the reasons that follow, we would dismiss the appeal. We are not satisfied that the learned trial judge materially erred in dismissing the City's claim as it was presented at trial. In our view the learned trial judge correctly rejected the City's primary claim that it could call for Tah Land to subdivide and transfer the Community Purposes Site at any time in the future. Having so concluded, and having regard to the manner in which the case was conducted below, we are not satisfied that her Honour erred in rejecting what she identified as the City's alternative claim.
Before turning to the proceedings below, we will set out the background facts, including, as part of the chronology, the material terms of the Deed.

Background facts

The evidence in relation to the events between 1991 and 2019 (including the dealings between the parties and the previous owner of the Land) consisted entirely of the documentary record. Other than evidence called from expert witnesses (three planning experts and one valuer), there was no oral evidence adduced at trial. The three planning experts were Stephen Allerding, who was called by the City, and George Hajigabriel and Anthony Shrapnel, who were called by Tah Land.
The following summary is taken largely from the Primary reasons, supplemented, where necessary, from the documentary exhibits.

Events prior to the creation of the Deed

The Land was previously owned by Debkot Pty Ltd (Debkot). In 1988 the City received a request on behalf of Debkot to initiate an amendment to the relevant town planning scheme, Town Planning Scheme No 1 (TPS 1) to rezone the Land from rural to a variety of commercial uses. The proposed amendment became Amendment 443.[8]
[8] Primary reasons [18].
The zoning proposed in Amendment 443 can be seen in the following plan:[9]
[9] This copy of the zoning plan is taken from a plan prepared for a later amendment, Amendment 672 (see [55] and following below) reproduced in Primary reasons, Annexure E1. It was, however, the only version in colour in the evidence. It accords with the plan in Amendment 443 (reproduced in Primary reasons, Annexure A).
Relevantly, the majority of the Land (coloured blue) referred to 'Commercial' zoning, the oblong shape coloured orange with a blue circle referred to 'Hotel' zoning, the light blue area with a dot in the north east referred to 'Service Industrial' zoning and the blue areas surrounded in red referred to 'Service Station' zoning.
In 1991, the Council of the City resolved to support proposed Amendment 443 on conditions that included ceding to the City 1.5 ha of the Land for a Community Purposes Site. The Community Purposes Site was proposed to be zoned Civic under TPS 1. At that time the City's anticipated community uses and associated land requirements for a Community Purposes Site were a library, a senior citizens centre, a child care centre, a community centre, a youth activities centre and a human services building. Those uses were considered to involve a land requirement of 1.5 ha, being a total building area of approximately 2,656 m² and the remainder for parking bays.[10]
[10] Primary reasons [19] ‑ [23].
On 23 March 1992, the relevant Minister declined to approve Amendment 443 without modifications to the total retail floor space and the staging of retail development. On 6 May 1992, the Council resolved to defer consideration of the modifications until advice was received from Debkot that it agreed to cede land for future road requirements.[11]
[11] Primary reasons [24] ‑ [25].
At around this time, Tah Land agreed to purchase the Land from Debkot.
On 7 May 1992, Tah Land agreed to the Minister's modifications, following which the City approved Amendment 443, with the modifications that had been required by the Minister.[12]
[12] Primary reasons [26] ‑ [27].
On 1 July 1992 Tah Land became the owner of the Land.[13]
[13] Primary reasons [28].
On 2 September 1992, prior to the final approval of Amendment 443 by the Minister, the City and Tah Land entered into the Deed.[14]

Material terms of the Deed

[14] Primary reasons [18], [31]; see GAB 9 ‑ 27.

The City is defined in the Deed as 'the Council' and Tah Land as 'the Owner'.[15]
[15] GAB 10.
The Recitals to the Deed refer to the proposal to rezone the Land from 'Rural' to 'Commercial, Hotel, Service Industrial and Service Station' and that the Council had been requested to adopt Amendment 443.
The Recitals further state that on 29 July 1991, the Council resolved to finally adopt Amendment 443 and take other necessary steps provided that the parties entered into a legal agreement which ensured that:
(i)the Community Purposes Site will be created which will be transferred to Council by the Owner at no cost to the Council whatsoever …
(ii)the Owner constructs full earthworks, drainage facilities, a dual use path and one carriageway for Hepburn Avenue at no cost to the Council whatsoever;
(iii)the Owners cede to the Council the portion of the Land which is required for the construction of Hepburn Avenue and cede to the Crown a portion of the Land for a 0.1 m pedestrian accessway at no cost to the Council whatsoever.
Clause 1.1 of the Deed defines the Community Purposes Site to mean:
[T]hat part of the Land to be zoned 'Commercial' pursuant to Amendment 443 of the TPS and to subsequently be zoned 'Civic' as provided for pursuant to Clause 2 of this Deed and having a total area of FIFTEEN THOUSAND SQUARE METRES (15000^m2) which shall be located in the area coloured in orange on the Plan but at such specific location as is determined by the Council in its absolute discretion[.]
The definition of the Community Purposes Site refers to a location in the area coloured orange on 'the Plan'. The term 'the Plan' is defined in cl 1.1 to mean 'the Plan annexed hereto and marked A as varied from time to time'.
The Plan annexed to the Deed (Plan A) is as follows:
As is apparent from the Plan, it was prepared for Debkot. The underlying proposed development depicted on the Land, including a hotel complex, shopping centre and two service stations, generally follows the zoning depicted in the zoning plan forming part of Amendment 443 (see [24] to [26] above).
As is clear from the provisions of the Deed that follow, however, it is apparent the Deed contemplated that the development depicted on the Plan and the zoning in Amendment 443 would change.
Clause 2 of the Deed concerns the zoning of the Community Purposes Site. It provides:
2.0ZONING OF COMMUNITY PURPOSES SITE
2.1Within three (3) years of the date of execution of this Deed, and prior to the transfer of the Community Purposes Site pursuant to clause 4.1 of this Deed the Owner agrees to:
(a)submit to the Council the New Plan;
(b)request the Council to initiate a further amendment to the TPS to include a 'Civic' zone over the Community Purposes Site;
(c)request the Council to initiate a further amendment to the TPS to include a 'Commercial' zone over the Further Commercial Area provided that the Intersection Land is transferred to the Council pursuant to clause 7 of this Deed.
2.2If the Owner does not submit to the Council the New Plan in accordance with Clause 2.1(a) the Council may (without being obliged to do so) in its absolute discretion determine the location of the Land which is to be zoned 'Civic'.
2.3If the Owner does not request the Council to initiate a further amendment to the TPS in accordance with Clause 2.1(b) then the Council may (without being obliged to do so) rezone the Community Purposes Site to 'Civic Zone' and the Owner shall indemnify and keep indemnified the Council on demand for the costs incurred by the Council in relation thereto.

The term 'the New Plan', used in cl 2, is defined in cl 1.1 of the Deed to mean:
[T]he plan prepared by the Owner to a standard required by and to the satisfaction of the Council which contains similar details as included in the Plan, and:
(a)makes provision for the Community Purposes Site;
(b)makes provision for the Further Commercial Area PROVIDED THAT the Intersection Land is transferred to the Council pursuant to clause 7 of this Deed;
(c)and contains any other details and matters as required by the Council[.]
'Further Commercial Area' was defined in cl 1.1 of the Deed to mean a part of the Land in equivalent area to the Intersection Land area to be zoned Commercial to be specifically located at such area as is approved by the City, but generally east of the area to be zoned commercial under the then proposed amendment (i.e. Amendment 443).
Clauses 3, 4, 8 and 9 of the Deed are as follows:
3.0SUBDIVISION OF COMMUNITY PURPOSES SITE
3.1The Owner hereby agrees, prior to the commencement of trading of any business on the Land;
(a)to prepare or cause to be prepared at the Owner's cost the Plan of Subdivision;
(b)to do all acts and things necessary to obtain all clearances and approvals that are required from any relevant authorities in order for DPUD to approve the Plan of Subdivision; and
(c)to submit the Plan of Subdivision to DPUD for approval.
(d)to upon DPUD endorsing its approval to the Plan of Subdivision, forthwith lodge the Plan of Subdivision with the Office of Titles Perth for examination and registration.
4.0TRANSFER OF COMMUNITY PURPOSES SITE
4.1The Owner agrees to transfer the title to the Community Purposes Site to the Council prior to the commencement of trading of any business on the Land.
4.2If the Council receives what the Council determines in its absolute discretion to be a sufficient amount of funding pursuant to the East Wanneroo Headworks Funding Scheme the Council shall pay to the Owner upon receipt of the Duplicate Certificate of Title for the Community Purposes Site a sum being equal to an amount which the Council determines to be the Residential Value of such part of the Community Purposes Site having an area of FIVE THOUSAND SQUARE METRES (5000^m2) which the Council shall determine.
4.3If the Council is unable to obtain funding pursuant to the East Wanneroo Headworks Funding Scheme as referred to in clause 4.2, then the Owner shall transfer the Community Purposes Site to the Council at no cost to the Council whatsoever.
8.0VARIATION
8.1The Owner acknowledges and covenants with the Council that the Council may at its discretion request: –
…
(b)the variation of the New Plan or the Plan
and the Owner will forthwith comply with the Council's requests and requirements.
9.0ASSURANCES
9.1The Owner covenants and agrees to do all acts and things and execute all such deeds and documents as are necessary on its respective part to give effect to the terms of this Deed.
The term 'Plan of Subdivision', used in cl 3, is defined in cl 1.1 of the Deed to mean:
A surveyed plan of subdivision of the Land which when approved and registered at the Office of Titles, Perth will (inter alia) subdivide the Community Purposes Site from the Land[.]
It can be seen that cl 2, cl 3 and cl 4 provided for a three‑step process.
First, Tah Land was obliged to:
(a)submit a plan to a standard required by, and to the satisfaction of, the City containing similar details as in the Plan that, among other things, made provision for the Community Purposes Site; and
(b)request the Council to initiate further amendments to TPS 1 to include a Civic zone over the Community Purposes Site and to include a Commercial zone over the Further Commercial Area.
Secondly, Tah Land was obliged, prior to the commencement of trading of any business on the Land, to:
(a)prepare a plan of subdivision which subdivided the Community Purposes Site from the Land;
(b)take steps to obtain Department of Planning and Urban Development (DPUD) approval for the plan of subdivision; and
(c)when the plan of subdivision was approved, lodge it at the Office of Titles.
Thirdly, Tah Land was then obliged to transfer the title of the Community Purposes Site to the Council prior to the commencement of trading of any business on the Land.
The Deed also made provision for Tah Land to cede and transfer additional parts of the Land to the City, including:
(a)by cl 5, all that part of the Land coloured blue on Plan A required for the construction of Hepburn Avenue (Hepburn Avenue land);
(b)by cl 6, all that part of the Land coloured red on Plan A required for use as pedestrian access (Pedestrian land); and
(c)by cl 7, all that part of the Land coloured yellow on Plan A required for a major intersection treatment (Intersection land).

Events following the creation of the Deed

On 28 October 1992, the Council of the City resolved to adopt Amendment 443 in its final form and forwarded it to the Minister for final approval. Amendment 443 was approved by the Minister on 16 November 1992.[16]

Steps taken by Tah Land in 1993

[16] Primary reasons [30] ‑ [31].

On 24 May 1993, Tah Land made an application to DPUD to amalgamate and re‑subdivide the Land in a manner that, if approved, would have created a 1.5 ha Community Purposes Site in an area bordering the north‑east corner of the Land, and well outside the orange circle depicted on Plan A.[17]
[17] Primary reasons [36].
Following that application, the City Planner met with representatives of Tah Land, including in relation to the location of the Community Purposes Site. The outcome of those meetings and further consideration by the Council of the City was that the plan of subdivision removed the Community Purposes Site on the basis that the site would be the subject of a further application once the exact location of the site was determined.[18]
[18] Primary reasons [37] ‑ [43].
While an amended plan of amalgamation and re‑subdivision (removing the Community Purposes Site) was approved by DPUD on behalf of the Western Australian Planning Commission (WAPC), Tah Land did not implement that plan of subdivision.[19]

1994 – the creation of a Civic Zone in the north‑east corner of the Land

[19] Primary reasons [44].

On 7 October 1993, Tah Land's planning consultant asked the City to amend TPS 1, to rationalise the zoning of the Land from 'Commercial, Service Industrial, Hotel and Service Station' to 'Commercial, Mixed Business, Civic & Cultural Reserve and Service Station'. The proposed amendment became known as Amendment 672.
The zoning proposed for Amendment 672 included a 1.5 ha area in the north‑east corner to be zoned 'Civic and Cultural', as seen marked in orange in the following plan:[20]
[20] This plan is extracted from the final plan in Amendment 672, which was reproduced in Primary reasons, Annexure E1 (as is the extract at [25] above).
The Scheme Amendment Report for proposed Amendment 672, prepared by Tah Land's planning consultant, stated that the depicted location of the 1.5 ha Civic and Cultural site had been agreed to by Tah Land and the City. Relevantly, the Report, which is dated October 1993, said: [21]
With relation to this agreement, both Council and the proponent are bound by the agreement to cater for the provision of the required Civic and Cultural reserve. Accordingly, it is necessary to amend the existing zoning over the land to cater for this new zone, the location of which has been agreed will be in the north eastern corner of the land.
[21] Primary reasons [47]; GAB 56.
While the learned trial judge noted that there was no evidence[22] that the City had agreed that the Civic and Cultural zone would be in the north‑east corner of the Land, the City nevertheless resolved to approve proposed amendment 672.[23]
[22] Or, as counsel for the City put it, 'no other evidence' (Appeal ts 35).
[23] Primary reasons [48].
Amendment 672 was forwarded to the Minister for approval. The report from the Town Clerk appears to confirm the agreed change of location of the Community Purposes Site. The Town Clerk's report read, in part:[24]
The major change to the layout of the site is generated through the provision of a 1.5 ha area in the north east corner of the site for Civic and Cultural use. This modification and the slight easterly movement of the shopping centre has necessitated the relocation of the original 'Service Industrial' area from the north‑eastern corner to the southern boundary of the site.
[24] Primary reasons [49].
The Minister approved Amendment 672, which took effect on 3 May 1994.[25]
[25] Primary reasons [49].
In the meantime, Tah Land applied for development approval for earthworks associated with the development of the shopping centre on the Land.[26] There were discussions between representatives of Tah Land and the City in relation to the levels at which the site would be developed, including the level of the proposed Community Purposes Site.[27]
[26] Primary reasons [51].
[27] Agreed Chronology (WAB 85 ‑ 86).
On 9 February 1994, the City approved Tah Land's application for development approval for Stage 1 earthworks and retaining walls. That approval was granted subject to:[28]
7The City's Community Purpose site being cut to the levels previously agreed upon as detailed on the development application;
8[Tah Land] being advised that Council is prepared to defer the earthworks for the Community Purpose site providing them with an opportunity to dispose of the sand at a suitable location;
9Council being able to remove any sand for its requirement from the Community Purpose site within the timeframe;
10The agreed levels for the Community Purpose site being achieved and stabilised with appropriate retaining works being undertaken on the proposed batters within three years.
[28] Primary reasons [52].
The minutes of a meeting on 21 April 1994 between the City Planner (Mr Drescher), other representatives of the City and Tah Land, recorded the following having been discussed in relation to the Community Purposes Site:[29]
The City of Wanneroo is currently relooking at the drawings of the Shopping Centre which could impact on the floor level of the Council site. Until the contour of the Shopping Centre is confirmed Council would prefer the site as a natural bush on its site. TAH Land advised City of Wanneroo regarding the dispute with Malavoca.
OD [Mr Drescher] also mention that the council will not be ready to develop the site within 3 to 5 years, and the council could progressively remove the sand from the site, but the ultimate responsibility rest [sic] with TAH Land.
[29] Primary reasons [55] ‑ [56].
On or about 8 August 1994, Tah Land's planning consultant developed revised plans of stages 1 and 2 of the development of the shopping centre, identified as Plans SK6, SK7, SK8 and SK10. Plan SK6, which is reproduced at [5] above, delineated as Lot 59, a 1.5 ha area of land marked 'Community Facilities' in the north‑east corner of the land.[30]
[30] Primary reasons [57].
The City Planner recommended that the Council approve Tah Land's application to develop the shopping centre as revised in the revised plans. The City Planner's report included the following:[31]
[31] Primary reasons [61].
BACKGROUND
…
As part of the rezoning of the land the owners agreed to, at no cost to Council:
1.Create and transfer to Council the community purpose site.
…
A legal agreement is in place to ensure the above requirements will be satisfied.
At its meeting on 9 February 1994 Council approved an application for earthworks and retaining walls greater than 2 metres in height on the subject land, subject to:
1.The City's community purpose site being cut to the levels previously agreed upon on the development application.
2.The applicant being advised that Council is prepared to defer the earthworks for the community purpose site providing them with the opportunity to dispose of the sand at a suitable location.
3.Council being able to remove any sand for its requirement from the community purpose site within the time‑frame.
…
Integration of Community Purpose Site
Although Council is not expected to develop its community purpose site for several years, further discussions are necessary with the applicant regarding the integration of Council's facility with the shopping centre. These discussions will be associated with proposals for Stage II of the shopping centre and will also take into consideration future residential development immediately north of the subject site. Although the applicants see Stage II being a substantial retail expansion, together with a number of other activities, this will need to be justified when this later application is made. The retail component will no doubt require extensive justification.
…
Hepburn Avenue Construction Works
The Deed of Agreement between the City and the shopping centre owner requires in part, that the developer constructs the full earthworks and a single carriageway (with a dual transition from the Wanneroo Road/Hepburn Avenue intersection) along the shopping centre frontage connecting to Giralt Road and to the existing access road to Kingsway.
This conceptual layout is shown on Attachment 3.
In view of this revised proposal, the extent of the dualling of Hepburn Avenue requires further consideration.
…
RECOMMENDATION:
THAT Council:
1.approves the revised design for the Landsdale District Shopping Centre on Lots 2 and 3 Wanneroo Road, Landsdale, as submitted by Coney Project Management Pty Ltd on behalf of Tah Land Pty Ltd, subject to:
…
4.modifies the legal agreement between Tah Land Pty Ltd to reflect the revised arrangements of this approval.
On 28 September 1994, the Council approved Tah Land's application to develop the shopping centre, passing resolutions to the effect set out in the City Planner's report. Condition 27 of the approval required the legal agreement between Tah Land and the City to be modified to reflect the revised arrangements of the approval, with all expenses, including legal expenses, being met by Tah Land.[32]
[32] Primary reasons [62] ‑ [63].
As noted above, the learned trial judge found that the submission to the City by Tah Land in August or September 1994 of Plan SK6 and Plan L01 constituted performance of Tah Land's obligations under cl 2.1(a) of the Deed to submit the New Plan.[33] It may be observed, at this point, that the submission of Plan SK6 and Plan L01 occurred within the three year period within which Tah Land was required to take the steps referred to in cl 2 of the Deed (see [41] above).

1995 – Tah Land attempts to subdivide the Land

[33] Primary reasons [258].

On 14 March 1995, Tah Land lodged with the Ministry of Planning a surveyed plan of subdivision proposing the creation of a new lot (Lot 152) in the location described as Lot 59 on Plan SK6. The plan of subdivision, dated 1 February 1995 (February 1995 subdivision plan), appeared as follows:[34]
[34] Primary reasons [64] ‑ [65], Annexure H.
As can be seen, in addition to proposing the creation of Lot 152, the February 1995 subdivision plan also depicted areas reflecting the Hepburn Avenue Land and the Intersection Land (albeit that those areas were not identified on the plan as separate lots).[35]
[35] See [38] and [50] above.
Around this time, and prior to the lodgement of the February 1995 subdivision plan, the City considered the proposed subdivision.
In an internal memorandum dated 7 February 1995 (internal memorandum), between the Coordinator of Statutory Planning and the City Planner, there appeared to be a suggestion that the location of the Community Purposes Site might be changed. The internal memorandum included the following recommendations:[36]
RECOMMENDATIONS
1.The Community Purpose Site not be created until further negotiations have taken place to achieve suitable location and integration.
2.The Legal Agreement be amended to allow trading from the site prior to the transfer of land to the Council and to enable Council to initiate the transfer process.
[36] Primary reasons [66].
Following these recommendations, by letter dated 23 February 1995, the City proposed to defer the creation of the Community Purposes Site. That letter did not suggest that a different 'suitable location' for the Community Purposes site might be negotiated (as suggested in the internal memorandum). Indeed, as counsel for the City observed, the correspondence was premised on the site having already been determined as Lot 152.[37] The letter dated 23 February 1995 included the following:[38]
With respect to the community purpose site, it has always been our understanding that the community purpose site would be free of any batters and as there is no design for your proposed second stage and which when finally designed may require some earthworks and batters, it may be prudent to defer creating Lot 152 until it is known whether a second stage is in fact achievable. It would be appropriate at that stage that the community purpose site be created in the knowledge of any change of levels and likely batters which may affect that proposed Lot 152.
To achieve this, however, it will be necessary to vary the Deed of Agreement between the City and the landowners as that specifies that the transfer of Lot 152 must be effected prior to any retail trading from the site.
[37] Appeal ts 44.
[38] Primary reasons [67]; GAB 94.
Thereafter, representatives of Tah Land and the City appear to have discussed deferring the transfer of the Community Purposes Site.[39] As a consequence Tah Land, by an amended plan of subdivision dated 14 November 1995 (November 1995 subdivision plan), deleted proposed Lot 152 from the proposed subdivision. The November 1995 subdivision plan was as follows:[40]
[39] Primary reasons [69].
[40] Primary reasons [69], Annexure I.
As can be seen, the November 1995 subdivision plan proposed the creation of two lots reflecting the Hepburn Avenue Land and the Intersection Land.
It was the November 1995 subdivision plan that was ultimately approved by the WAPC on 11 April 1996.[41]
[41] Primary reasons [77].
As was apparent from the City's letter to Tah Land dated 23 February 1995, the City had proposed to Tah Land that the Deed be amended to reflect the City's desire to defer the transfer of the Community Purposes Site until after the commencement of trading of any business on the Land. To that end, on 11 December 1995, Tah Land's project management consultant, Coney Project Management (CPM), wrote to the City requesting advice from the City so that it could instruct solicitors to prepare amendments to the Deed.[42]
[42] Primary reasons [70]; Agreed Chronology (WAB 89).
It is apparent that, by December 1995, Tah Land was expressing concern as to the lack of response from the City in relation to the amendments to the Deed. The matter was discussed at a meeting on 22 December 1995 between representatives of the City and representatives of Tah Land. The minutes of that meeting, prepared by CPM, record the following:[43]
3.0Amendment to the Deed – Coney Project Management expressed their concern at the lack of response from City of Wanneroo to requests for the City to formally advise the desired amendments to the deed regards the Community Facility Site. Concern now existed that the amendments to the deed would not be finalised prior to the anticipated Centre opening (advised as 26 March 1996). O Drescher confirmed that the City would not delay the Certificate of Occupancy due to this matter.

March to May 1996 – the parties correspond and trading commences at the shopping centre

[43] Primary reasons [71].

The events of 1996 were critical to the City's case at trial.
On 1 March 1996 and 21 March 1996, Tah Land's consultants wrote again, seeking advice about the City's desired amendments to the Deed.[44] Tah Land advised the City that the proposed opening date of the shopping centre was 26 March 1996.[45]
[44] Primary reasons [72].
[45] Agreed Chronology (WAB 90).

By letter dated 22 March 1996, the City responded to Tah Land in the following terms:[46]
Legal Agreement
Condition 27 of the development approval for this centre requires that the existing legal agreement, between the landowner and the City be modified to reflect the revised arrangements of the approval. It may also be appropriate that the timing arrangements relating to the community purpose site be modified at this stage. The legal agreement should therefore be modified to achieve the following:
1.A time extension for the identification, zoning, subdivision and transfer of the community purposes site on the basis that the City is able to require these matters to be carried out at any time in the future if it requires.
… [four other matters not presently relevant]
If the City receives a letter of undertaking from the landowner agreeing to finalise the above matters to the satisfaction of the City as soon as practicable, then these matters will not delay the issue of the Certificate of Classification for the centre. (emphasis added)
[46] Primary reasons [73]; GAB 98 ‑ 99.
By letter dated 27 March 1996 (and received on 9 April 1996), Tah Land responded to the City, stating, so far as was relevant:[47]
1.Legal Agreement
Tah Land confirm their undertaking to modify the existing Legal Agreement to incorporate points 1 to 5 inclusive of City of Wanneroo letter of 22 March 1996, on proper and reasonable terms and conditions consistent with the original Legal Agreement. Further it is agreed that ceding of Hepburn Avenue and the required public access ways, and the transfer of the Intersection Land will occur as soon as is practicable. The Community Purposes site will be located to North Eastern corner of our land as shown on our Architectural Site Plan. (emphasis added)
[47] Primary reasons [75]; GAB 101 ‑ 105.
The letter dealt with other matters and concluded by stating that Tah Land trusted that the letter clarified all outstanding planning matters, and they looked forward to receipt of the Certificate of Classification for the development.
Tah Land sent a follow up letter to the City, dated 17 April 1996,[48] following which the City responded to the letter of undertaking by letter dated 19 April 1996. That letter said:[49]
You are advised that this undertaking is generally acceptable to the City, however the following points should be noted:
1.The principles contained within the existing legal agreement relating to the location of the community purposes site should not change as they adequately cover the issue.
…
Please advise if you do not agree with the above points.
… I have also advised the Building Department that all Planning related matters are in hand and that they should issue the certificate of classification when they are satisfied that building matters have been resolved.
I trust that this now resolves the present issues.
[48] GAB 106.
[49] Primary reasons [76]; GAB 107.
On 3 May 1996, the City issued a Certificate of Classification enabling the opening of the Kingsway Shopping Centre.[50]
[50] Primary reasons [78].
On 13 May 1996, Tah Land sent a facsimile/memo dated 29 April 1996 to the City, responding to the City's letter of 19 April 1996. That facsimile/memo included the following:[51]
W[e] refer to your letter dated 19th April 1996 relating to the above matter and our subsequent discussions and site meeting on 23rd April 1996 and 1st May 1996, and we confirm the three points addressed in your above letter as follows:
1. In relation to the location of the community purposes site, we are in agreement to both the statements included in the Deed dated the 8th September 1992 and a further statement included in the Scheme Amendment Report dated 27th October 1993 confirming the location of the 1.5 ha area (copy of which is attached for your reference). This same location has been further reconfirmed in the overall development site plan which was submitted to and accepted by Council.
[51] Primary reasons [79].
The memorandum concluded with a statement that Tah Land looked forward to the City's reply. There was no evidence of any reply to that communication.
As will be apparent, the effect of these communications between the parties in March and April 1996 was a critical part of the City's case at trial. It is also central to its case on appeal.
For present purposes it is sufficient to observe that, as at April 1996, the parties were adopting different views concerning the identification of the Community Purposes Site. While Tah Land contended that the location had been determined earlier and was the lot shown on Plan SK6 in the north‑east corner of the Land, the City maintained that its location had yet to be determined. As will be seen, that difference of position continued.

November 1996 to 1999 – Tah Land attempts to engage with the City

On 18 November 1996, Tah Land sent to the City a draft deed of variation of the 1992 Deed, proposing variations in respect of the Community Purposes Site. The draft included the following variations:
By inserting clause 3.2 as follows.
3.2Notwithstanding the provisions of Clause 3.1, which are insofar as the reference to 'prior to the commencement of trading of any business on the Land' is no longer of any force or effect: –
(a)The Owner hereby agrees upon receipt of the Council's request in writing (which shall be made not later than 12 months from the Date of the Variation), to perform the Owners obligations pursuant to clauses 3.1 (a), (b), (c) and (d).
By inserting Clause 4.4 as follows:
4.4Notwithstanding the provisions of Clause 4.1 which are insofar as the reference to 'prior to the commencement of trading of any business on the Land' is no longer of any force or effect: –
(a)The Owner shall transfer the title to the community purposes site to the Council within one (1) calendar month from the date of issue of the title for the community purposes site. (emphasis added)
The City did not respond to the draft deed of variation.[52]
[52] Primary reasons [81].
On 2 June 1998, Tah Land re‑sent a copy of the draft deed of variation to the City. Again, the City did not respond.[53]
[53] Primary reasons [82].
On 10 July 1998, an agent of Tah Land wrote to the City. The letter included the following:[54]
As part of the development approval from the City of Wanneroo for the construction of the shopping centre, parcels of land on the site owned by TAH Land Pty Ltd included community facilities, which will be handed over to the City of Wanneroo for development.
It is the owners desire to annex off the existing site, the parcels of land earmarked by the City of Wanneroo for these community developments.
Council's attitude towards this proposal would be appreciated, alternatively we would welcome the opportunity of meeting with you or your Officers to discuss this matter in the near future.
Your comments in due course would be appreciated.
[54] Primary reasons [83]; GAB 119.
The City did not respond.[55]
[55] Primary reasons [84].
About 18 months later, on 9 November 1999, an officer of Tah Land met with a Commissioner of the City (which was then evidently being administered by Commissioners and not by a Council). Tah Land's representative gave the Commissioner a memorandum which, among other things, identified the plans including Plan SK6 as being the New Plan within the meaning of the Deed, adopted by the Council of the City on 28 September 1994 (see [66] above).[56]
[56] Primary reasons [85]; GAB 120 ‑ 121.
Following the meeting with the Commissioner, Tah Land sent a facsimile dated 10 November 1999, which included the following:[57]
Council at its meeting on 28 Sep 94, item I20945 approve our revised design SK6 Stage I, SK7 and SK8 Stage II modified plans. This long term overall 'New Plan' for the Centre was done to the satisfaction of the Council that makes provision for the 'Community Purposes Site' and 'Further Commercial Area' which is in accordance with the Deed.
…
The current 'New Plan' was already previously adopted by the Council and that the development of the current Centre was built on the basis of the approved plan for future expansion and rationalisation of the zonings has been completed in accordance with the Deed. However, if the City can demonstrate feasibly alternative proposals, we [would] be happy to consider and discuss main street and urban design together with the City and Ministry for Planning in due course. Finally, we would like to request for the Centre to be permitted immediately to increase to 21,000m² instead of 20,000m² for reasons we highlighted above.
…
Given the significant contributions from our company under the terms and conditions of the Deed, likewise we request Council to also abide by its approval of our revised design SK6, SK7 and SK8.
[57] Primary reasons [86]; GAB 122 ‑ 124.
There was no evidence that any reply was sent.[58]

2002 to 2004 – further development proposals

[58] Primary reasons [87].

On 6 July 2001, the City adopted a new planning scheme in the form of District Planning Scheme No 2 (DPS 2). DPS 2 made provision for the Council to require the preparation of structure plans as a prerequisite for Council's support for rezoning or subdivision or its consideration of applications for planning approval.[59]
[59] Primary reasons [88].
In 2002, Tah Land took steps to a prepare a draft structure plan to develop the shopping centre to increase its floorspace. It also made an application to develop the Intersection Land, which was referred to the WAPC with a recommendation that it be refused. When the WAPC was deemed to have refused the application to develop the Intersection Land, Tah Land appealed to the Town Planning Appeals Tribunal.[60]
[60] Primary reasons [88] - [96].
In the context of that proceeding, from May 2003, representatives of Tah Land and the City met to discuss the transfer of the Intersection Land, and also to discuss what variations to the Deed the City desired in relation to the Community Purposes Site.[61]
[61] Primary reasons [96].
Following a meeting on 13 May 2003, by letter dated 27 May 2003, Tah Land set out its understanding of the matters discussed, including the matters that Tah Land wanted to see addressed in a deed of variation to the Deed, as follows:[62]
[62] Primary reasons [97]; GAB 237 - 238.
1.Clause 2.1(a) – Submission of New Plan to Council.
Under the Deed, a New Plan was to be prepared to the satisfaction of the Council and which:
(a)Made provision for the Community Purposes Site;
(b)Made provision for the Further Commercial Area; and
(c)Contained any other details in matters required by the Council.
Plans SK6, SK7 and SK8, constituting the New Plan, were prepared and submitted to Council pursuant to the Deed. They were also provided to the WAPC on 25 November 1993 by Council. When Council approved development of Stage One, which was part of the New Plan, it thereby expressed its satisfaction as to the New Plan. Although it may not have the status of a Structure Plan, it nevertheless was our plan for the whole site and it satisfied Council. If Council was not satisfied with the New Plan for any reason, it should have said so.
2.Clause 2.1(b) and 2.1(c) request Council to initiate a further amendment to the TPS to include a 'civic' zone over the Community Purposes Site and a 'commercial' zone over the Further Commercial Area.
As plans SK6, SK7 and SK8 were to the Council's satisfaction, we requested that Council initiated the amendment to rationalise the zonings and the amendment was completed and gazetted on 3 May 1994 as Amendment No 672 to TPS 1.
3.Clause 3 – Subdivision of Community Purposes Site and Clause 4 – Transfer of Community Purposes Site.
As requested by Council by letter dated 22 March 1996, the subdivision and transfer of the above site was deferred. The identification and zoning of the Community Purposes Site location was already agreed as part of the New Plan and confirmed by the zonings effected pursuant to Clauses 2.2 and 2.3 of the Deed. Our letters dated 27 March 1996 and 29 April 1996 to the City of Wanneroo reiterated the location of the site. The matter can be remain deferred until the City determines what facility is to be provided so as to integrate with the Centre.
…
As has been outlined above, we performed our obligations under the Deed and have waited on the outstanding matters to be resolved by the City. It is clear that a Deed of Variation to the Deed must be executed to reflect not only the fact that some matters have not been addressed, but also at least the following matters (subject to our legal advice):
(a)The recital to the Deed must establish that the City is satisfied as to the New Plan, to be defined as the Plan comprised in drawings SK6, SK7 and SK8. We do not accept that our plan for the site which was provided to the City in order for it to be satisfied can now be rejected by the City;
(b)A proper mechanism must be in place for dealings with the Main Roads Department relating to the Intersection Land …
If you accept all of the above, then our solicitors can correspond with your solicitors to finalise the terms of the Deed of Variation. We look forward to your early response in that regard.
It can be seen that in this letter, Tah Land:
(a)asserted that plans SK6, SK7 and SK8 constituted the New Plan, stage 1 of which had been approved by the City;
(b)further stated that, pursuant to cl 2.1(b) and cl 2.1(c), Tah Land had requested the Council initiate an amendment to TPS 1, which was duly implemented as Amendment 672;
(c)stated that the subdivision and transfer of the Community Purposes Site was deferred in accordance with the City's request by letter dated 22 March 1996, with the Community Purposes Site located as stated in Tah Land's letters of 27 March 1996 and 29 April 1996;
(d)said that the matter could remain deferred until the City determined what facility was to be provided so as to integrate with the Centre; and
(e)proposed various amendments to the Deed.
By letter dated 4 August 2003, the City wrote to Tah Land providing a schedule of matters that the new deed should cover. One of those matters was expressed to be:[63]
The identification, zoning, subdivision and transfer free of cost to the City of a 1.5 ha area of land for community purposes when required by the City.
[63] Primary reasons [98]; GAB 240 - 241.
Tah Land responded by letter dated 29 August 2003. While it generally agreed with the schedule of matters identified by the City, in relation to the identification of the Community Purposes Site it said:[64]
The land set aside for community purposes has already been identified and the necessary zoning implemented. The subdivision application will [be] commenced upon request by the City.
[64] Primary reasons [99]; GAB 242 - 243.
Thus, in 2003, the parties were still at issue as to whether the location of the Community Purposes Site had already been determined.
On 10 February 2004, Tah Land's solicitors sent the City a draft deed of variation of the Deed. Among other things, the draft deed proposed to vary the Deed by inserting a requirement that the City construct on the Community Purposes Site a 'genuine community purposes facility only' and that if the City did not complete construction of the genuine community purposes facility the Community Purposes Site would be rezoned for commercial use and transferred to Tah Land.[65] In that context the draft deed identified the 'New Plan Plans' as being Plan SK6. The draft deed also made provision in relation to the Intersection Land.[66]
[65] Primary reasons [100]; GAB 246 - 254.
[66] GAB 250 - 251.
The City did not respond to the proposed deed of variation of the Deed.[67]
[67] Primary reasons [101].
In this context the learned trial judge, in a passage the subject of challenge in the appeal, said:[68]
Tah Land was, in 2004, still pressing for the transfer to the City of land for the Community Purposes Site. On 24 March 2004, solicitors for Tah Land wrote to solicitors for the City, enclosing an application for the issue of new titles and a transfer form for the Intersection Land. In the covering letter, Tah Land's solicitors stated:
Our client has spoken to Mr Rod Peake of the City of Wanneroo and requested that any further caveat lodged by the City of Wanneroo pursuant to the 1992 Deed be lodged only against lot 888 when the certificate of title for that lot is created. Our client understands Mr Peake regards out [sic] client's request as reasonable given that the only obligation imposed on our client by the 1992 Deed outstanding is the transfer to the City of Wanneroo of that portion of lot 888 defined in the 1992 Deed as 'the Community Purposes Site.'

2005 to 2010 – further structure planning and negotiations with the City

[68] Primary reasons [102]; GAB 272 - 273.

In 2005, Tah Land engaged consultants, Shrapnel Urban Planning (Shrapnel), to prepare a structure plan, pursuant to pt 9 of DPS 2,[69] for the future development of the shopping centre.[70]
[69] The learned trial judge observed that DPS 2 provided for two types of structure plan: local plans made by the City pursuant to pt 10 of DPS 2 in relation to various 'Cells' within East Wanneroo (including the Land); and plans prepared by individual proponents pursuant to pt 10 of DPS 2 for the purposes of various types of applications (including applications for subdivision or for planning approval).
[70] Primary reasons [110].
In response to a request from Shrapnel as to the matters to be included in the proposed structure plan, the City's Director Planning and Development, by letter dated 8 September 2005, identified one of the matters that should be addressed as being 'the outstanding issues associated with the legal agreement between the landowner and the City' and 'details on any necessary zoning changes required'.[71]
[71] Primary reasons [110].
On 18 August 2006, Shrapnel submitted a draft structure plan for the shopping centre to the City. The draft structure plan did not designate any land for community purposes, and showed the area in the north‑east of the Land as having a proposed use class of 'Mixed Use Development'.[72]
[72] Primary reasons [111] ‑ [112].
The explanatory report attached to the draft structure plan:
(a)included a 1995 concept plan (depicted as Figure 2), which it said had been prepared in conjunction with the Deed. That concept plan included stage 1 of the development (i.e. that depicted on Plan SK6), together with stages 2 and 3;[73]
(b)stated that, in recent years, relevant planning authorities had indicated that they no longer recognised the concept plan in Figure 2 as a suitable basis for the expansion of Kingsway City;
(c)stated that the draft structure plan proposed that the Civic and Cultural uses (such as the library) be integrated within the main centre, rather than being located on the currently reserved site, which was peripheral and inconveniently located for such a use. The explanatory report observed that discussions with a view to establishing a library were related to the Deed, several aspects of which remained to be settled;[74] and
(d)referred to the parcel of land currently reserved for Civic and Cultural purposes in the north‑east corner, stating that it was considered that that land would be better utilised for a future medium‑rise mixed use residential development and that civic and cultural uses would be more accessible and better used if integrated in the main development.
[73] Primary reasons [114]; Exhibit A, Tab 237, 2151 ‑ 2152.
[74] Primary reasons [115].
The City did not approve the draft structure plan under DPS 2 within 90 days of receipt and was deemed to have refused to approve it. On 21 December 2006, Tah Land commenced review proceedings in the State Administrative Tribunal (the Tribunal) in relation to the deemed refusal.[75]
[75] Primary reasons [117].

The Council of the City nevertheless considered the draft structure plan on 15 May 2007. The City's planning officer prepared a report recommending that the City not agree to the draft structure plan, including for the reason that the proposal was said not to make suitable alternative arrangements for the provision of integrated community facilities. The report recommended that Council not agree to any structure plan that proposed non‑civic and cultural related land uses on the portion of land presently set aside for civic and cultural uses until and unless suitable alternative arrangements were in place and incorporated in the structure plan.[76]
[76] Primary reasons [119].
The Council did not adopt the planning officer's recommendations. Council resolved that the draft structure plan was satisfactory, subject to a number of modifications, which included:[77]
[77] Primary reasons [121].
a)the structure plan being modified by the proponent to:
i)accommodate no more than 20,000m² retail net lettable area;
ii)encompass the peripheral areas and provide for a high level of integration with the surrounding area in terms of land use, building height, scale, orientation, level of intensity and connections;
iii)provide for the evolutionary revitalisation and remodelling of the centre from a conventional 'box' shopping centre to a legitimate main street based mixed use town centre using best practice urban design and sustainability principles;
…
b)the following associated matters being addressed by the proponent:
…
ii)suitable alternative arrangements, to those set out in the current legal agreement between the City and the landowner, being made with the City in relation to the provision for community facilities to service the surrounding community;
On 1 April 2008, the WAPC resolved to refuse to adopt the proposed draft structure plan. On 8 April 2008, Tah Land commenced an application in the Tribunal to challenge the WAPC's refusal to adopt the proposed draft structure plan.[78] That application to the Tribunal (DR 164 of 2008) ultimately resulted in Agreed Structure Plan 59 (ASP 59) being adopted by the WAPC on 12 November 2010. ASP 59 is discussed in more detail in the next section of these reasons.[79]
[78] Primary reasons [122].
[79] Primary reasons [142]; GAB 374; Appeal ts 86. At the hearing of the appeal it was confirmed that ASP 59 resulted from a consent order made in the Tribunal proceedings.
Prior to the adoption of ASP 59, Tah Land continued to deal with the City and WAPC in relation to the draft structure plan, including in the context of mediation hearings in the Tribunal.[80] Those dealings included the following.
[80] See Primary reasons [135] ‑ [137].
On 29 April 2008, Tah Land approached the Council, requesting it to reconsider the proposed draft structure plan. Shrapnel's letter on behalf of Tah Land stated that Tah Land remained ready to progress the issue of suitable provision of community facilities, but that that could only reasonably be achieved within the context of an agreed Structure Plan.[81]
[81] Primary reasons [123].
On 29 July 2008, the Council resolved to revoke its motion of 15 May 2007 and resolved that the draft structure plan was satisfactory, subject to various qualifications which included, relevantly, Tah Land making reasonable alternative arrangements to those set out in the Deed in relation to the provision of community facilities to service the surrounding community.[82]
[82] Primary reasons [124].
After a 'workshop' between Mr Shrapnel and officers of the City on 15 December 2008 to discuss the draft structure plan, Mr Shrapnel outlined a number of points needing to be addressed by Tah Land, one of which was to confirm the need to vary the Deed, noting that the City wanted a space of approximately 1,000 sqm for a library within the mixed use development near the main public plaza and entrance to the shopping centre.[83]
[83] Primary reasons [126] - [127].
By letter dated 30 October 2009, the City's Director Planning and Sustainability wrote to the Department of Planning. In that letter, after noting the workshop of 15 December 2008, the Director stated that discussions had been held between the City and Tah Land which may lead to the transfer of land to the City for library purposes, but that the City's requirements on that matter were still being clarified. The letter further noted that the City would be aiming to ensure that whatever alternative arrangement arrived at did not involve any reduction in value of the contribution required to be made by Tah Land under the Deed.[84]
[84] Primary reasons [128].
On 24 November 2009, the WAPC again declined to endorse the proposed draft structure plan. Its reasons for refusal included the lack of an identified suitable replacement site for civic and community uses that were currently reserved for the north‑east corner of the site. The WAPC considered that it had not been adequately demonstrated that the town square was optimally located and designed as a high‑quality meeting place and community amenity, well‑integrated with the civic and cultural facilities.[85]
[85] Primary reasons [129].
In response, Shrapnel, on behalf of Tah Land, submitted to the WAPC a modified plan of general land uses for the land showing the location and size of the proposed civic use, a branch library, located at the south‑west corner of the town square in the middle of, and close to, the southern boundary of the Land.[86]
[86] Primary reasons [130].
On 12 February 2010, Mr Shrapnel sent an email to officers of the City, attaching what he referred to as draft minutes of matters that were said to have been agreed between Tah Land and officers of the City. Tah Land sought the City officers' response to enable inclusion of the document in the material to be provided to the WAPC and its solicitors. Under the heading 'Community Purposes Site', it stated, as having been agreed, as follows:[87]
•The existing 1.5 hectare Community Purposes Site at the north‑east corner of the Structure Plan area, is currently owned by Tah Land Pty Ltd, which has previously agreed to transfer this land to the City in accordance with an existing Deed of Agreement.
•However, it has more recently been agreed with Council officers that the existing Community Purposes Site is no longer required and should be replaced by a site integrated within the expanded centre, as indicated in the revised Structure Plan.
•The location of the proposed Community Purposes Site adjacent to the town square has now been agreed. It is envisaged that the site will be part of a mixed use development within which 1,000 sqm of floorspace at ground level will be provided to the City for civic purposes.
•At present the community purposes site is intended to become a branch library but, subject to Council's funding priorities, it may at Council's discretion be used for alternative civic purposes, with up to 250 sqm being able to be used by the City for other purposes to be agreed with the centre owner.
•It is agreed that the site will eventually be in Council ownership, with the timing of acquisition yet to be agreed; and that the most likely form of title will be a strata title, given the current intention to incorporate the site within a mixed use development.
[87] Primary reasons [132].
On 16 February 2010, the City's Director Planning and Sustainability responded to Mr Shrapnel's draft minutes. The response was said to be without prejudice to the Council's formal position on the matters and not to prejudice the administration's position at the time that it submits a report and recommendation to the Council upon the matter. With those caveats, under the heading 'Community Purposes Site', the following was said:[88]
Administration agrees with the various matters recorded under this heading, except for the following points:
2.1Bullet points 1 and 2: The existing Deed does not actually require the transfer of the land currently zoned for civic purposes under District Planning Scheme No 2 (DPS 2), but rather requires that a 'New Plan' be prepared by the owner, which will show a new site of 1.5 ha as required by the City, and this is to be transferred to the City. In short, it has always been intended that a better‑integrated site would be determined.
…
2.4Bullet points 6 and 7: Prior to the valuation being undertaken, it is likely that a new Deed will need to be prepared to formally vary the relevant provisions of the existing Deed. The new Deed will need to clarify all relevant details, including the basis for valuation of the 1.5 ha area as well as the 1,000 sqm site to be acquired, provide for indexation of dollar amounts to ensure they retain their true value, and timings for obligations to be met.
[88] Primary reasons [133].
It can be seen from this response that the City maintained its position that the site of the Community Purposes Site had not yet been determined, and that Tah Land was yet to prepare a 'New Plan'. As the learned trial judge noted,[89] the response made no comment about the third bullet point in which it had been said that the location of the proposed Community Purposes Site adjacent to the town square had by then been agreed.
[89] Primary reasons [134].
On 27 April 2010, Mr Shrapnel, on behalf of Tah Land, prepared a revised draft of Part 1 of the draft structure plan and, on 6 May 2010, provided it to the City. The revised plan included:[90]
(a)provision, in cl 5.1.3, that the main purpose of the specifically identified civic area was to provide a prime location for the establishment of the City of Wanneroo Civic and Cultural facility;
(b)the size, form, nature, tenure and use of the Civic and Cultural facility would be the subject of a separate reasonable agreement between Tah Land and the City;
(c)in cl 6, that the matter be the subject of a formal reasonable agreement between Tah Land and the City, including the associated removal of the existing Civic and Cultural reserve in the north‑east corner of the structure plan area; and
(d)the first stage of additional development would include the Community Purposes facility, unless the Council was not ready for that to occur, in which case it would occur in the second or subsequent stage.
[90] Primary reasons [138].
The City's Director Planning and Sustainability responded by recommending various changes to Part 1 of the revised draft structure plan.[91] Those changes included:
[91] Primary reasons [139].
10. 5.1.3: Add [a new] sub‑clause (iii):
'(iii) Relative to (ii) above and notwithstanding the designation of the proposed Civic area on Diagram 1 of the Development Control Plan, the proponent will (in accordance with the deed entered into with the City, dated …) be required to transfer 1.5 hectares of land to the City for Civic/Community Purposes until or unless the City otherwise agrees to the alternate provision of such a site elsewhere in the structure plan area.'
11. 5.1.3: include a point (iv): 'In the Civic area, land use permissibility shall be in accordance with the Civic and Cultural zone of the Scheme, except that Retail uses may be permitted at the discretion of the Council.' [This provides clarity regarding use permissibility. The exception is included as 'Shop' is a prohibited use in this zone, and a coffee shop or similar may wish to be included.]
…
23. 6.1(i): Delete and replace with:
'(i) If required as a result of Council's decision in respect of clause 5.1.3(iii), an agreement to replace the existing deed referred to in that clause.'
…
25. Include at the end of section 6.1: 'The above obligations upon the proponent shall be required to be complied with in accordance with Clause 9.9 of the Scheme.' [this satisfies Council's resolution of 6 April 2010 (point 3).]
In response, Mr Shrapnel advised that Tah Land was comfortable with the changes proposed, except for the proposed additional subclauses 5.1.3(iii), 5.1.3(iv) and the proposed amendment to subclause 6.1. Mr Shrapnel's letter stated that the change proposed to subclause 5.1.3(iii)[92]
purports to be a contractual obligation, when a Structure Plan is a planning instrument, guiding development. If Tah Land Pty Ltd has an obligation under a deed, then that must speak for itself. In our view, the objective of making provision for a Civic and Cultural facility as part of the Activity Centre is clearly identified, the precise nature of which needs to be negotiated between the parties. The current draft of the Structure Plan adequately identifies that objective.
[92] Primary reasons [140].
Thereafter, representatives for Tah Land and the City continued to negotiate each of the clauses of the draft structure plan.[93]

November 2010 – ASP 59

[93] Primary reasons [141].

As noted at [115] above, following the resolution of the Tribunal proceedings, on 12 November 2010 the WAPC adopted ASP 59. The seal of the City was affixed to ASP 59 on 6 December 2010.[94]
[94] Primary reasons [142].
At the time of the adoption of ASP 59, DPS 2 included a clause (cl 9.8.3) to the effect that the identification by reference to 'zones' in an Agreed Structure Plan had effect as if those areas were zones having that designation under DPS 2 itself.[95]
[95] Primary reasons [143].
ASP 59 contained a Development Control Plan consisting of 11 diagrams. Diagram 1 depicted general land uses in the Structure Plan area. 'Mixed Use (Civic) Zoning' was depicted on Diagram 1 as a blue box along the southern boundary of the land abutting Hepburn Avenue, and the north‑east corner of the land depicted the use of 'Residential' and 'Open Space'.[96] Diagram 1 in ASP 59 appeared as follows:[97]
[96] Primary reasons [145].
[97] Primary reasons, Appendix L.
It was common ground at trial, and not in dispute on appeal, that from its adoption on 12 November 2010 until the 'deemed provisions' were inserted in DPS 2 (resulting in the repeal of cl 9.8.3 of DPS 2), the effect of the designated land uses as shown in diagram 1 of the Development Control Plan was that these zones applied to the land as if the provisions were incorporated into DPS 2.[98]
[98] Primary reasons [147].
The deemed provisions came into effect on 19 October 2015,[99] with the effect that decision‑makers were required to have due regard to, but were not bound by, a structure plan when deciding an application for development approval or subdivision approval.[100]
[99] The deemed provisions came into effect by the making of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
[100] Primary reasons [148] ‑ [149].
Clause 5.1.3 of ASP 59 provided:[101]
5.1.3Mixed Use (Civic)
(i)The main purpose of the specifically identified Mixed Use (Civic) area is to provide a prime location for the establishment of a City of Wanneroo Civic and Cultural facility within the Mixed Use area.
(ii)The size, form, nature, tenure and use of the Civic and Cultural facility will be the subject of a new reasonable agreement between the land owner and the City of Wanneroo.
(iii)It is intended that the new agreement referred to in clause 5.1.3 (ii) will replace the existing deed of agreement between the land owner and the City regarding the provision of Civic and Cultural land in the Structure Plan Area.
[101] Primary reasons [151]. See also cl 9.9 of DPS 2 (Primary reasons [144]) which prevented the development of land subject to an obligation in an Agreed Structure Plan unless satisfactory arrangements were made for the discharge of that obligation.
Clause 6 of ASP 59 provided that Tah Land would, prior to the determination of any development application for Stage 1, negotiate and enter into agreements on reasonable terms with the City. Clause 6 included the following:[102]
[102] Primary reasons [153].
6.1Agreements
Unless the Council is otherwise reasonably satisfied that any development in respect of Stage 1 can be approved in the absence of agreement, the proponent of development of Stage 1 shall, prior to the Council's determination of a development application for Stage 1, negotiate and enter into agreements on reasonable terms with the City as follows:
(i)An agreement to facilitate the relocation of the proposed Civic and Cultural facility referred to in Clause 5.1.3(ii) from the existing Civic and Cultural Reserve to the location identified in the Structure Plan; …
…
6.3.Stage 1
Stage 1 of any additional development shall comprise the construction of:
(i) The proposed extension of the shopping centre.
(ii) The Town Square.
(iii) Commercial tenancies on the northern side of the Main Street sufficient to generate some pedestrian activity on the street.
(iv) The Civic and Cultural facility, unless Council agrees to it being included in a later stage, or agreement for its inclusion in Stage 1 is delayed for any reason.
The explanatory report attached to ASP 59 stated, in relation to the part of the Land zoned 'Civic and Cultural' in Amendment 672 (see [56] above):[103]
[T]here is currently a large parcel of land zoned for Civic & Cultural purposes in the north eastern corner of the site. It is considered that this land would be better utilised for a future medium‑rise mixed‑use/ residential development, and that any civic and cultural uses within the activity centre would be more accessible and better used if they were integrated into the main development. In addition to commercial community facilities such as the existing medical centre, health club and proposed cinemas, non‑commercial civic and cultural facilities specifically proposed in the structure plan are:
•A Town Square at the main southern entry to the centre:
•A Council branch library to be located adjacent to the Town Square (see Diagram 1 of the Development Control Plan in Part 1).
Re‑planning the land currently zoned Civic & Cultural, and provision of the library (the inclusion of which in the Centre has been specifically requested by the City of Wanneroo) will necessitate the renegotiation of some aspects of the current agreement between the City of Wanneroo and the centre's owner. Clause 6.1.(i) of Part 1 requires this agreement to be entered into prior to Council determining a development application for Part 1.

2011 to 2014 – Tah Land applies to redevelop the shopping centre

[103] Primary reasons [154]; GAB 447 ‑ 448.

Stage 1 of the additional development referred to in ASP 59 included the proposed extension of the shopping area. It also included:[104]
The Civil and Cultural facility, unless Council agrees to it being included in a later stage, or agreement for its inclusion in Stage 1 is delayed for any reason.
[104] GAB 385.
Before making the application for the Stage 1 redevelopment, Tah Land's consultant wrote to the City by email dated 1 May 2011. That email included the following, under the heading 'New Council Library':[105]
We are unsure of the requirements here so will proceed on the basis of assumed acceptable Library outcome for the purposes of evaluating the land swap/building lease arrangement. We fully understand that final agreement will hinge on a number of factors and that nothing should be assumed as accepted at this point. For this item to be progressed, once again we feel that in order for Tah Land's proposal to be properly considered, we need to make a few assumptions regarding requirements so that 'order of magnitude' costings can be prepared for comparison purposes.
[105] Primary reasons [155]; GAB 583.
An officer of the City responded, by email dated 26 May 2011:[106]
In relation to the community purpose site, as discussed at our meeting, it must be accepted that the City's current entitlement is for Tah Land to transfer a freehold site for this purpose, to Council, free of costs. Council has endorsed a structure plan that recognises a better planning and community outcome could be achieved by integrating the community purpose site within the 'town square' area, to assist in the creation of a vibrant activity centre. And, when City staff meet to discuss this project, this will be the key issue for consideration (together with the advantages and disadvantages of what is now being mooted). To assist in these discussions you are welcome to put forward options outlining the type and tenure of site and commercial arrangement that Tah Land is prepared to offer. The City (through the Director Corporate Performance & Strategy) will then consider the acceptability of those options from a commercial perspective and will negotiate with Tah Land accordingly. Ultimately, the City will need to be satisfied that there is no net diminution of value or benefit between what is being offered, versus what Council is already entitled to. The process you have outlined below (for you to obtain valuations and other financial information) to then present to the City, is appropriate and agreed. (emphasis added)
[106] Primary reasons [156]; GAB 585.

In the period 2011 to 2014:
(a)Tah Land lodged a development application for Stage 1 to further develop the shopping centre. Initially, the application showed a 1,000 sqm library. At the City's insistence, the application was modified to exclude the library area from it.
(b)By letter of 27 June 2014, the City's solicitors 'confirmed' that the City had not relinquished or waived its rights under the Deed and that the development of a residential development on the community purpose site would need to be the subject of a further written agreement between the City and Tah Land, as well as a further development application and approval. The letter noted that a further written agreement was foreshadowed in cl 5.1.3 of ASP 59.
(c)On 7 October 2014, the Tribunal made consent orders approving the development application subject to conditions, one of which was that, prior to the commencement of development, further revised plans would be lodged and approved by the City which were to address, among other things, the deletion of all references to a library.
In 2015:
(a)In June 2015, a letter from the City stated that it considered that consideration of the options for the provision of a library at the shopping centre and resolution as to the Community Purposes Site under the Deed were separate matters.
(b)Discussions as to a library did not go anywhere.
(c)The City issued a notice of default on 23 September 2015, alleging default by Tah Land of its obligations under cl 3.1 and cl 4.1 of the Deed.

Ground 2(b)(i) – the purposes of the Deed

Returning to the particular matters the focus of subpars (i) to (v) of ground 2(b), we start with the nature of the obligation in the present case. It concerned the time for performance of the obligation to subdivide and transfer the Community Purposes Site.
As we have concluded in the context of ground 1, that obligation had, as its purpose, the orderly and proper planning of the locality and, in particular, the need to facilitate civic and community uses in the locality. While, by its terms, the Deed did not control the use to which, after transfer, the City might ultimately put the Land, it is in our view clear that the obligations in the Deed were a means to achieving orderly and proper planning. Those obligations were not simply a means to provide the City with the equivalent of developer contributions or some other financial benefit.
In those circumstances, in our view, the fact that, by the time of the City's demand, the Community Purposes Site (being Lot 59 on Plan SK6) had ceased to be able to achieve the planning purpose to which the obligation in the Deed was directed was, in our view, plainly relevant to the assessment of whether a reasonable time had elapsed. For that reason, ground 2(b)(i) must be rejected.

The unsuitability of Lot 59 as a community and civic site

In this context, there were, at the time of the City's demand (including its initial demand in 2015) two aspects to the 'unsuitability' of Lot 59 on Plan SK6 as a community and civic site: first, as to the City's intentions in that regard; and, secondly, as to the objective suitability of the site having regard to the expert planning evidence.
Both aspects were relevant to the assessment of whether a reasonable time had elapsed. The City's intention and attitude in relation to the suitability of the site were directly relevant to its conduct over the period during which it failed to call for, or indeed accept, performance from Tah Land. It was also, therefore, relevant to the causes of, and responsibility for, the delay. Similarly, the objective suitability of the site for civil or community purposes was also relevant to the fairness (and reasonableness) of the City calling for performance at a time when performance could no longer achieve the planning purposes to which the obligations in the Deed were directed. The Primary reasons reveal that the learned trial judge (correctly) took into account all of these matters. Her Honour's findings in relation to those matters do not disclose error.
Dealing with each of the matters in turn.
As to the City's view as to the suitability of Lot 59 on Plan SK6 as a community purposes site, the learned trial judge found that the City regarded Lot 59 as not desirable from at least 1995. Her Honour was correct to so find. As early as 7 February 1995, after the north east corner of the Land had been zoned Civic and Cultural and after the City had approved the development based on Plan SK6, the City's internal documentation revealed a view on the part of its officers that the site was not suitable and proposed 'further negotiations … to achieve suitable location'.[304]
[304] See [71] above.
At that time, however, the City did not reveal to Tah Land that it had, in effect, changed its position. Indeed, it initially suggested deferral of the subdivision and transfer of the Community Purposes Site, on the basis that the site in the north eastern corner of the Land was the Community Purposes Site.[305] It was only after Tah Land had, at the City's request, removed the proposed subdivision of the site in the north eastern corner of the Land that the City expressed the view that the location of the site was yet to be determined (in particular by its correspondence in early 1996).
[305] See [72] above.
Thereafter it is apparent from the evidence before the learned trial judge and from the judge's findings that the City maintained the view that the location of the Community Purposes Site had not been determined. It expressly reiterated that view in February 2010[306] and it was not until 2014, many years later, that the City appears to have clearly expressed the view that the site in the north eastern corner of the Land was indeed the Community Purposes Site the subject of the Deed.[307] Even at that time, however, the City was not suggesting that the site was a suitable site for community or civic purposes, merely that the City was 'entitled' to it.
[306] See [124] above.
[307] See [145] above. While there was some correspondence in 2011 with an officer of the City referring to the City's current right under the Deed to 'that 1.5 ha of land', as the learned trial judge noted that correspondence incorrectly referred to a larger portion of the Land and was a reference to the entire area zoned 'Civil and Cultural' (see [144] above).
In those circumstances, in our view, it was open to the learned trial judge to conclude, as her Honour did, that the City pressed the view that Lot 59 on Plan SK6 was not a suitable site for the provision of civic and cultural facilities up to and including when it issued the first notice of default in September 2015.[308]

Ground 2(b)(v) – no intention to use Lot 59 for a civic or community facility

[308] Primary reasons [421] (see [206] above).

Relatedly, in our view, it was open to the learned trial judge to conclude that, when the City called for performance in 2019, it did not then have the intention of using the site for a civic or community facility.
The conclusion that the City did not intend to use Lot 59 on Plan SK6 for a civic or community facility in 2019 was a matter of inference from all of the circumstances. That inference was based not simply on what the City said over the years but on what it actually did (or failed to do). In that regard, there was no evidence that the City, after it had determined that Lot 59 on Plan SK6 was not a suitable site for the civic or community facilities of the City, actively considered or proposed to use that site for such purposes.
As the learned trial judge found, at the time that the City called for performance, there were no arrangements made or proposed to be made to build civic and community facilities on that lot.[309] This finding was not challenged on appeal and it was correct. The most that could be said from the evidence is that there were occasions upon which officers of the City referred to the possibility of that site being used for community purposes if its preferred position was not achieved. Those references do not amount to any active consideration as to the use of the site and, in any event, they arose in 2015, at a time when the City began to insist that it was entitled both to the Community Purposes Site under the Deed and to the provision of civic facilities in accordance with ASP 59.
[309] Primary reasons [419].
The additional matters referred to by the City at the hearing of the appeal, namely the reports to Council prepared in December 2018 and April 2019 referred to at [379] above, in our view do not suggest otherwise. The references in those reports to the 'intended location' of the library/community facility being the Community Purposes Site were made as part of general background to recommendations to the Council of the City that it prepare design concepts in relation to entirely different sites. There is nothing in that reported background to support the conclusion that the City was giving active consideration to the use of Lot 59 on Plan SK6 for community purposes at that time. Indeed, insofar as those reports referred to concept design plans, those plans were said to propose the community facility within the Kingsway Shopping Centre itself, not on Lot 59 on Plan SK6.[310]
[310] GAB 623.
The learned trial judge's conclusion that the City did not intend to use the Community Purposes Site for community or civic purposes when it called for performance in 2019, must also be understood in the context of the objective suitability of the site for those purposes having regard to the expert planning evidence.
In that regard her Honour concluded that:
(a)the effect of ASP 59 and State Planning Policy 4.2 was that from at least the end of 2010, the area located in the north-east corner of the Land was not, as a matter of orderly and proper planning, a suitable area for the provision of civic and community facilities;[311] and
(b)the expert evidence established that, by 2019, a subdivision to create the Community Purposes Site for civic facilities uses consistent with those envisaged by the Deed was unlikely to be approved by the WAPC.[312]
[311] Primary reasons [413].
[312] Primary reasons [420(b)].
There was no challenge to these conclusions in the appeal, nor to her Honour's acceptance of the evidence of Mr Hajigabriel and Mr Shrapnel that orderly and proper planning required that the land depicted as Lot 59 on Plan SK6 should be allocated, as it is in ASP 59, to predominantly high density residential and open space.[313]
[313] Primary reasons [422].
These findings, in our view, compel the conclusion that, at the time that the City called for performance, the relevant planning context, and the requirements of orderly and proper planning, had completely moved on from what they had been in 1996. In those circumstances, it is, in our view, highly unlikely that the City, having disavowed Lot 59 on Plan SK6 as a suitable site for community or civic facilities for so long, would then make arrangement to use the site for those purposes anyway. This is particularly so given that, on its own case, if the site had been transferred to it, the City would have been unconstrained from using the site for its highest and best use (being high density residential and mixed use development).
The unlikelihood of the City (which is itself a planning body) using Lot 59 on Plan SK6 for a use that was inconsistent with orderly and proper planning, in our view, further strengthens the inference drawn by the learned trial judge that the City did not intend to use the Community Purposes Site for community or civic purposes when it called for performance. The learned trial judge has not been shown to be in error in so concluding. Ground 2(b)(v) must fail.
Returning then to the causes of, and responsibility for, the delay in the performance of the Deed and the City's challenge to the finding that the delay was the responsibility of the City and not Tah Land.

Ground 2(b)(iii) – the City's failure to collaborate and its repeated declining to accept performance

In our view, it is clear that a significant and pervasive cause of the delay in performance of the Deed was the City's insistence, from 1996 to 2014, that the location of the Community Purposes Site under the Deed was yet to be determined. Important, in that context, is the fact that, while the City consistently maintained that the location of the Community Purpose Site was yet to be determined, it nevertheless failed to engage in any meaningful way with the contrary view expressed by Tah Land.
As noted above, from 1996 the City maintained that the location of the Community Purposes Site under the Deed had yet to be determined. In the years that followed, on numerous occasions, Tah Land by reference to the documentary record (including the City's own actions), consistently set out the basis upon which it contended otherwise; namely, that the location of the Community Purpose Site had been determined by the submission and approval of Plan SK6. On every occasion that Tah Land did so, the City either failed to respond at all[314] or responded with mere assertion, simply stating that the location was yet to be determined.[315] At no time did the City address the substance of Tah Land's position in that regard.
[314] See e.g. [86], [93], [96].
[315] See e.g. [102], [124].
In addition, and more generally, the City failed to engage at all with Tah Land's repeated attempts to progress the issue of the Community Purpose Site by way of variation to the Deed.[316]
[316] See e.g. [90], [91], [106].
In this regard, we reject the City's submission that it was merely seeking to renegotiate the location of the Community Purposes Site. That submission is far removed from the substance of what the City communicated to Tah Land. There is a fundamental difference between, on the one hand, accepting the position articulated by Tah Land, but requesting renegotiation and, on the other hand, refusing to accept that position. All of the City's communications were of the latter character.
It was in this context that the learned trial judge accepted the proposition that, by its refusal to accept the location of the Community Purposes Site as Lot 59 on Plan SK6 and its desire to keep the location of that site open, the City had failed entirely to collaborate in the performance of the obligation it ultimately asserted in 2015.
Her Honour was, in our view, correct to so find. The City's conduct as a whole (particularly up to, and including, the approval of ASP 59),[317] was far from collaborative. In our view, it may properly be described as stonewalling. Not only was the City content to leave the issue of the Community Purposes Site wholly unresolved, its failure to engage with Tah Land effectively prevented the issue from moving forward at all.
[317] Which was the time frame referred to by the learned trial judge in this context (see Primary reasons [420(a)] (at [205(a)] above).
The City sought to emphasise, in its submissions, that there were few, if any, occasions upon which Tah Land expressly 'offer[ed] to perform cl 3.1 after the agreement to defer'. It was on this basis, for example, that the City submitted that the learned trial judge erred in finding that the City repeatedly declined to accept performance of the asserted obligations.[318]
[318] See [362] ‑ [363] above.
The learned trial judge's findings in this regard, however, should not be narrowly understood. It is true that there are few examples, in the course of the period following in 1996, in which Tah Land, in terms, requested the City to accept the subdivision and transfer the area depicted as Lot 59 on Plan SK6 (pursuant to cl 3.1 and 4.1 of the Deed).
The City's failure to accept performance of the Deed was, however, more fundamental than this. Before Tah Land could perform cl 3.1 and cl 4.1 of the Deed, it was necessary for the parties to perform cl 2 of the Deed. Clause 2 included obligations on the part of Tah Land (submitting the 'New Plan' and requesting the rezoning of the Commercial Purposes site) and required the cooperation and agreement of the City (in accordance with the definition of 'New Plan'). Without, for example, the 'New Plan' having been submitted to the satisfaction of the City, there could be no 'Community Purposes Site' which Tah Land would be able to subdivide and transfer.
It was precisely Tah Land's obligations under cl 2 which the City repeatedly (and wrongly) refused to accept had been performed by Tah Land. We have described the City's refusal as 'wrongful' because, as the City contended at trial and as the learned trial judge found, Tah Land's submission of Plan SK6 did constitute performance of Tah Land's obligations under cl 2.1(a) of the Deed to submit the New Plan.[319] Tah Land had therefore performed its obligations under cl 2.1, such that the Community Purposes Site had come into existence within 3 years of the date of the Deed. From 1996 until 2014 the City, however, refused to accept that that was the case.[320] Indeed, it repeatedly contended that Tah Land's obligation to submit a 'New Plan' had not been performed.
[319] Primary reasons [258].
[320] Primary reasons [417].
In those circumstances, for Tah Land to unilaterally submit a further plan of subdivision so as to subdivide Lot 59 on Plan SK6 from the Land in accordance with cl 3.1 would have been pointless. The City, by its insistence that cl 2.1(a) had not been performed, had made abundantly clear that such a step on the part of Tah Land would not be accepted by it as performance of the Deed.
In those circumstances, the only thing that Tah Land could do was to seek the City's confirmation that Tah Land had indeed performed its obligations under cl 2.1 and that the location of the Community Purposes Site had indeed been determined to the satisfaction of the City. Not only did the City refuse to do so, it asserted (wrongly) to the contrary.
It is to be recalled that the 'asserted obligation' with which the learned trial judge was concerned in the finding challenged by ground 2(b)(iii), was the 'asserted obligation' to transfer Lot 59 on Plan SK6. Identification of the Community Purposes Site was an essential precondition to its transfer. In circumstances where, from 1996 to 2014, the City repeatedly denied that Lot 59 on Plan SK6 was the Community Purposes Site, in our view, it was correct to describe the City as having 'repeatedly declined to accept performance of the asserted obligation it purported to insist on in 2019'.[321]
[321] Primary reasons [420(a)].
For similar reasons, in our view, the learned trial judge's description of Tah Land as 'pressing for the transfer' of the Community Purposes Site in 2004 does not reveal material error.[322] That description of Tah Land's position must be seen in its context. In August 2003, Tah Land had stated (contrary to the City's position) that the Community Purposes Site had been identified, the necessary zoning implemented and that the 'subdivision application will [be] commenced upon request'.[323] It had also sought, again with no success, to have the City respond to a proposed variation of the Deed confirming that position in February 2004.
[322] See [107] above.
[323] GAB 251.
In those circumstances, the statement by Tah Land's solicitors in their letter of 24 March 2004 that 'the only obligation imposed on our client by the … Deed' was the transfer of the Community Purpose Site must be understood in the context of its insistence that the other obligations in the Deed, including the submission of the 'New Plan' had already been performed. It was consistent with the other statements by Tah Land at the time to the effect that it was ready, willing and able to transfer Lot 59 on Plan SK6 to the City when requested to do so.
Ground 2(b)(iii) is not made out.

Ground 2(b)(ii) – negotiations following 8 December 2015

In relation to ground 2(b)(ii), in our view, it perhaps goes too far to describe as a 'finding' the learned trial judge's observation at Primary reasons [182] to the effect that it appeared that no negotiations between the parties took place following the Council's motion dated 8 December 2015. That observation was, rather, a statement as to the state of the evidence before her Honour, which indeed did not reveal any particular negotiations occurring over that period. It also appeared in the context of her Honour having recorded that it was not long after the motion of 8 December 2015 that the City issued another notice of default and then issued the proceedings (in February and March 2016, respectively). So understood, her Honour's observation at Primary reasons [182] does not reveal error.

Ground 2(b)(ii) also challenges the learned trial judge's later finding that the City did not take 'any real steps' after 2015 to reach an agreement to locate a library at another location on the Land. That finding must also be understood in its context. As Tah Land submitted, her Honour had already concluded that the City, by making demands both for the Community Purposes Site and a library site integrated within the shopping centre (as contemplated by the Mixed Use (Civic) area in ASP 59), was adopting a position destructive of the negotiations contemplated by ASP 59. We will return to ASP 59 in a moment. For present purposes, it is sufficient to observe that, having so found, it is unsurprising that her Honour would later observe that the City had not taken any 'real steps' to reach an alternative agreement.
In any event, in our view, any negotiations contemplated after November 2015 would have been after the parties had joined issue in relation to whether Tah Land remained under an obligation to transfer the Community Purposes Site. On 23 September 2015, the City made its first request for performance of the obligations under cl 3.1 and cl 4.1 and Tah Land promptly responded, on 29 September 2015, to the effect that the City's demand was misconceived.[324]
[324] See [155] ‑ [157] above.
In that regard, while the learned trial judge quite properly expressed her conclusions as to the effluxion of a reasonable time looking backwards from 2019, in our view, no different result would have ensued if the matter was considered by reference to the time that the City first called for performance in September 2015. By that time, in our view, the die was well and truly cast and a reasonable time within which to call for performance of the obligations had already elapsed.
In our view, nothing that occurred after 2015 could have altered that position. Ground 2(b)(ii) has not been made out.

Ground 2(b)(iv) – ASP 59

That brings us, finally, to ground 2(b)(iv) and the learned trial judge's conclusion that it was unfair (and unreasonable) for the City to call for performance at a time after the making of ASP 59, as Tah Land was required by ASP 59 to provide for civic and cultural facilities on the Land if it wished to proceed with Stage 2 of the development of the Land. It is clear from the Primary reasons that, in concluding that a reasonable time had elapsed for the City to call for the subdivision and transfer of Lot 59 on Plan SK6, the learned trial judge gave significant weight to the effect of ASP 59 and to the circumstances leading to its creation.
In our view, her Honour was correct to do so and was correct to conclude that it was unfair (and unreasonable) for the City to call for performance at a time after the making of ASP 59.
In that regard, as we have noted above, the obligation in the Deed to subdivide and transfer the Community Purposes Site was a means of achieving planning purposes, namely the provision of civic and community facilities in the locality. There were (and are), of course, other means of achieving those purposes, including by the exercise of planning controls themselves as part of the approval process for development applications. The relevant planning framework might, for example, dictate that certain forms of development will only be approved where the relevant requirements of orderly and proper planning (including the need for civic facilities) can be met.
An important feature of the present case reflected in the learned trial judge's findings was that, while in 1992 the parties had contemplated that the relevant planning objectives would be met by means of the Deed between the City and Tah Land, by 2010 those objectives were directly addressed by the planning framework itself, and in particular by the requirements of ASP 59 and State Planning Policy 4.2.
Accordingly, there were two related matters that contributed to her Honour's conclusion that it was not fair to press for subdivision and transfer under the Deed following the making of ASP 59:
(a)first, the planning objectives which the parties had contemplated would be met by means of the Deed, could no longer be met by the Deed, because of the unsuitability of the Community Purposes Site to meet those objectives; and
(b)secondly, there was now an alternative means by which those objectives could be met, namely by the direct application of the relevant planning framework, including ASP 59, State Planning Policy 4.2 and DPS 2.
In addition, as the learned trial judge found by reference to the expert evidence, an essential feature of the relevant planning framework (reflected in ASP 59) was the provision of an accessible and well‑proportioned town square, linked to site specific and community facilities. As her Honour observed:[325]
Importantly, part of the reasons why the WAPC had refused to approve the draft structure plan on 24 November 2009 was that among other reasons, the draft was inconsistent with Element 7 of the draft State Planning Policy 4.2, and specifically the WAPC was not satisfied that it had been adequately demonstrated that the draft structure plan provided an accessible and well-proportioned town square, linked to site-specific and community facilities identified jointly with the City of Wanneroo.
…
Also of importance is that, one of the reasons why the WAPC would not approve the draft structure plan was because civic and cultural facilities should be well integrated into a town square and that a suitable replacement site for civic and community uses then currently reserved in the north-east corner of the Land had not been identified.
[325] Primary reasons [405], [418].
In that regard, in rejecting Mr Allerding's evidence that there was some prospect of amending ASP 59, her Honour said:[326]
The WAPC made it clear in 2010 that it would not approve ASP 59 without provision for integrated community purposes facilities, and there is no evidence before the court that the planning principles and policies relied upon by the WAPC in 2010 had changed by 2019.
[326] Primary reasons [451].
The requirement for integrated community facilities is clearly reflected in the terms of ASP 59. It is reflected in the Mixed Used (Civic) area and in the mandatory requirement ('shall') to include the Town Square and Civic and Cultural Facility.[327] While the terms of ASP 59 proposed that the Civic and Cultural Facility would be included in Stage 1 of any subsequent development, it was at the City's insistence that the inclusion of such a facility was deferred, a course that was contemplated by ASP 59.[328] There was no evidence to suggest that the requirement for integrated community facilities would not continue to guide future development of the site.
[327] See [136] above.
[328] See [142] above.
Her Honour was therefore correct to conclude that the changes in the planning framework over time had the practical consequence that Tah Land (or indeed any proponent for future development on the Land) will be required to provide for civic and cultural facilities on the Land in order to proceed with Stage 2 of the development of the Land. There is an obvious opportunity cost of Tah Land (or any proponent) being required to do so.
That being the case, the element of unfairness in the City calling for performance in 2019 in relation to an area of the Land no longer suitable for civic and cultural facilities is manifest. The ultimate planning objective of ensuring civic and community facilities in the locality would be met (by the application of orderly and proper planning) at Tah Land's cost, while at the same time the City would receive a windfall (in the form of land that is not to be used for civic and community facilities), also at Tah Land's cost. Moreover, under ASP 59, the civic and cultural facility required by it is to be the subject of a new agreement between Tah Land and the City. This agreement would replace the Deed. Yet the City's request to perform cl 3 and cl 4 of the Deed would, in all likelihood, entail enforcement of both the Deed and Tah Land's obligations in respect of the civic and cultural facility contemplated under ASP 59. The City's assertion that the two were separate matters emerged for the first time in 2015.
The changes in the planning framework effected by ASP 59, and the circumstances leading to its creation, thus firmly pointed to the conclusion that by well before 2019, a reasonable time for the City to require Tah Land to transfer the Community Purposes Site had elapsed.
Ground 2(b)(iv) has not been made out.

Conclusion on ground 2(b)

For these reasons, in all of the circumstances, including the length of the delay, the City's responsibility for the delay, the changes to the relevant planning framework and the unfairness to Tah Land, in our view a reasonable time had clearly elapsed when the City called for performance in 2019. The learned trial judge was correct to so conclude.
Ground 2 must fail.

Outcome of the appeal

None of the grounds of appeal having been established, the appeal must be dismissed.

Notice of contention

Given the failure of the grounds of appeal, it is not necessary for the purposes of determining the appeal to deal with the notice of contention. In all the circumstances, it is not appropriate to resolve the various issues raised by it.
In that regard, while contentions 1 and 2 are prima facie concerned with pure questions of construction as to the definition of Community Purposes Site in the Deed, and in particular whether it was, or could be, an area outside the orange circle on Plan A, the resolution of those contentions would raise a number of other issues of fact and law that were not the subject of findings by the learned trial judge.
In particular, in responding to the notice of contention, the City submitted that if, upon its proper construction, the Deed did confine the Community Purposes Site to the orange circle in Plan A:
(a)the parties by their conduct varied the Deed in that regard; or
(b)Tah Land could not take advantage of its own wrong in having submitted Plan SK6 with the Community Purposes Site located outside the orange circle and having relied upon it to enable its development of the shopping centre to proceed.[329]
[329] As it had submitted at trial (see [213] ‑ [214] above).
Both responses to contentions 1 and 2 would require this Court to make findings of fact in relation to issues that were not dealt with by the learned trial judge. In our view, it is neither necessary nor appropriate to make such findings now.
Contention 3 does relate to an issue that was the subject of findings by the learned trial judge. Nevertheless, those issues were not determinative of the trial before her Honour and involve a novel issue as to whether the effect of a planning instrument, such as ASP 59, can be said to give rise to a 'benefit' to a local government authority as that expression is understood by the doctrine of approbation and reprobation. That broad question of principle was not the subject of detailed submission by the parties in the appeal and in our view should await determination in a case in which it squarely arises.

Conclusion

The appeal should be dismissed.
The parties should be heard as to the appropriate orders, including as to costs.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Associate to the Honourable Chief Justice Quinlan
26 MAY 2022

[235] Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11,110, 11,117 (McHugh JA, Hope & Mahoney JJA agreeing); Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd[2008] WASCA 23; (2008) 35 WAR 520 (Lighting By Design v Cannington Nominees) [90] (Buss JA).