City of Wanneroo v Tah Land Pty Ltd
[2020] WASC 249
•3 JULY 2020
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| IN CIVIL | ||
| CITATION | : | CITY OF WANNEROO -v- TAH LAND PTY LTD [2020] WASC 249 |
| CORAM | : SMITH J | ||
| HEARD |
| ||
| DELIVERED | : 3 JULY 2020 | ||
| FILE NO/S |
| ||
| BETWEEN | : CITY OF WANNEROO |
Plaintiff
AND
TAH LAND PTY LTD
Defendant
Catchwords:
Contract - Deed made in 1992 between planning authority and developer to rezone, subdivide and transfer part of Land for a Community Purposes Site - Construction of Deed - Whether planning authority entitled to call upon the developer in 2019 for performance - Turns on own facts
Contract - Construction - Implied terms - Performance within reasonable time
Contract - Agreement to negotiate in good faith considered
Contract - Inferred agreement to abandon principles considered
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Doctrine of approbation and reprobation - Principles considered
Legislation:
Local Government (Constitution) Regulations 1998 (WA), reg 6(3)
Local Government Act 1960 (WA), s 9
Local Government Act 1995 (WA), s 2.1, s 2.5
Planning and Development (Local Planning Schemes) Regulations 2015 (WA),
cl 27(1) of sch 2
Planning and Development Act 2005 (WA), s 77(1)(a), s 138(3), s 257B
Result:
Plaintiff's claim dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr E M Heenan |
| Defendant | : | Mr M O'Meara SC & Mr M Hotchkin |
Solicitors:
| Plaintiff | : Castledine Gregory |
Defendant : Hotchkin Hanly
Case(s) referred to in decision(s):
Acton Real Estate Pty Ltd v Shemiran Pty Ltd [2011] WASCA 33
Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27
Baldwin v Icon Energy Ltd [2015] QSC 12 (2016) 1 Qd R 397
Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) ANZ
Conv Rep 681
Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
Coal Hub Pty Ltd v NSL Consolidated Ltd [No 4] [2018] WASC 41
Dockpride Pty Ltd v Subiaco Redevelopment Authority [2005] WASC 211
[2020] WASC 249
Electronic Industries Ltd v David Jones Ltd [1954] HCA 69; (1954) 91 CLR
288
Ellmore (Maitland) Pty Ltd v Tull [1954] HCA 69; (1995) 7 BPR 14,305
Equus Financial Services Ltd v Beagle Holdings Pty Ltd [2002] WASCA 273
Fazio v Fazio [2012] WASCA 72
Handley v Gunner [2008] NSWCA 113
JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011]
WASCA 16
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission
[2008] WASCA 211; (2008) 38 WA 276
Marshall v Metropolitan Regional Development Authority [2015] WASC 226
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; (2016) 329
ALR 1
Moore v Scenic Tours Pty Ltd [2020] HCA 17
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37;
(2015) 256 CLR 104
Peregrini Systems Ltd v Steria Ltd [2005] EWCA Civ 239
Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537
Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165
Porter v Sundance Resources Ltd [No 2] [2015] WASC 493
Rudi's Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568
Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34; (1929) 43 CLR 310
Tern Minerals NL v Kalbara Mining NL (1990) 3 WAR 486
Trans Petroleum (Australia) Pty Ltd v White Gum Petroleum Pty Ltd [2012]
WASCA 165; (2012) 268 FLR 433
[2020] WASC 249
Table of Contents
1.0 The action and the nature of the evidence ............................................................................ 7
2.0 The City's case and the result ............................................................................................... 8
| 3. | 3.1 The rezoning of the Land upon which Kingsway Shopping Centre was subsequently |
0 The chronological facts as disclosed in the agreed documents .......................................... 10 allow for the transfer of part of the Land as the Community Purposes Site ........................ 30 3.6 Tah Land's plans to further develop the Land and its further attempts to transfer part of the Land for the Community Purposes Site and vary the 1992 Deed .................................. 34 3.7 Tah Land proceeds with its plan to develop a structure plan for the future development of the Land which does not include a Community Purposes Site in the north-east corner of the Land ................................................................................................................................ 41 3.8 Agreed Structure Plan 59 is made .................................................................................. 56 3.9 Tah Land lodges a development application for Stage 1 to redevelop the Kingsway Shopping Centre in 2011 ...................................................................................................... 62 3.10 The failed negotiations for a library to be built on the Land in 2014 and 2015 ........... 68 3.11 The City issues a notice to Tah Land alleging default of the 1992 Deed ..................... 71
4.0 Determination of the issues as to liability .......................................................................... 76 4.1 The material terms of the 1992 Deed ............................................................................. 76
|
4.2.2 Whether the City could only call for the subdivision and transfer of land within the
orange circle depicted on the Plan marked 'A' of the 1992 Deed ..................................... 84
4.2.3 Could the City determine the site of the Community Purposes Site in its absolute
discretion? ......................................................................................................................... 89
4.3 Whether by 1994 Tah Land and the City manifested an intention that the 1992 Deed
should not be further performed according to its terms and that a new or varied agreement
should be drawn up? ............................................................................................................. 90
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4.4 Did Tah Land submit the 'New Plan' in 1994 and thus fulfil its obligation under cl
2.1(a) of the 1992 Deed? ...................................................................................................... 93
4.5 The issues that flow from a finding that the submission by Tah Land of Plan SK6 in
1994 constitutes the New Plan and satisfies its obligation pursuant to cl 2.1(a) of the 1992
Deed ...................................................................................................................................... 97
4.5.1 Was an agreement reached to extend time for compliance of the obligations in
cl 3.1 and cl 4.1 of the 1992 Deed, and if so what were the terms of the agreement? ..... 994.5.2 What constitutes reasonable time? ........................................................................ 113
4.6 Whether in May to August 2003, the parties entered into an agreement to negotiate a
new deed in good faith, including as to the location of the Community Purposes Site? ... 116
| 4. | 4.7.1 What was the legal effect of the City approving ASP 59? .................................... 121 |
7 What was the effect of the City approving Agreed Structure Plan 59? ........................ 121 Community Purposes Site depicted as Lot 59 in Plan SK6 had passed? ....................... 137 4.7.6 Does the doctrine of approbation and reprobation have application to the conduct of Tah Land or the City? ..................................................................................................... 161
5.0 Quantum of loss and damage if liability was established ................................................. 168 5.1 Principles - expectation loss ......................................................................................... 168 5.2 Assessment of damage and loss.................................................................................... 168
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Annexures
A Scheme Amendment Map - Amendment 443 B Plan marked A annexed to the 1992 Deed showing the orange circle C Proposed plan of subdivision dated May 1993 (depicting 1.5 ha community use site) D Amended proposed plan of subdivision dated 6 June 1993
| E1 & E2 | Scheme Amendment Map and Legend - Amendment 672 |
F Plan SK6 lodged Department of Planning and Urban Development 5 September 1994 G Plan L01 - Landscape Concept Plan lodged Department of Planning and Urban Development 5 September 1994 H Proposed subdivision plan dated 1 February 1995 (depicting a 1.50 ha lot in north-east corner of the Land) I Revised Subdivision Plan dated 14 November 1995 (depicting no separate lots within the Land) J Draft structure plan ASP 59 - Figure 2 - Development Control Plan K Draft structure plan ASP 59 - Amended Development Control Plan dated 2 December 2009 L ASP 59 - Development Control Plan - dated June 2010 M1 Development plan lodged with development application on 29 June 2011 showing a proposed library M2 Development plan lodged with development application on 29 June 2011 showing a proposed library N Google Map of the Land as at 2019
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SMITH J:
1.0 The action and the nature of the evidence
The defendant, Tah Land Pty Ltd (Tah Land), is the owner of 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) situated at Wanneroo Road, Landsdale (the Land) upon which it built, in or about 1995 and 1996, the Kingsway Shopping Centre.
The City of Wanneroo (City) sues in damages for an alleged breach of an obligation, pursuant to the terms of a deed entered into between it and Tah Land, executed as a deed under seal dated 2 September 1992 (the 1992 Deed), to subdivide and transfer title to the City, for no cost, 1.5 ha of the Land described as the Community Purposes Site, being a 1.5 ha area of land depicted in Lot 59 in Plans SK6 and L01.
The 1992 Deed was made between Tah Land and the City, a local government constituted as a body corporate, with perpetual succession and a common seal, established and continued pursuant to s 9 of the Local Government Act 1960 (WA) and s 2.5 of the Local Government Act 1995 (WA) for the district named Wanneroo and designated as a city (the Old City).[1] On 1 July 1998, the Old City was disestablished and re-established as a local government constituted as a body corporate, with perpetual succession and a common seal, by operation of cl 3 and cl 5 of the Joondalup and Wanneroo Order 1998, made pursuant to s 2.1 and s 2.5 of the Local Government Act 1995 and reg 6(3) of the Local Government (Constitution) Regulations 1998 (WA) (the New City).[2]
It is common ground that upon the disestablishment of the Old City and the re-establishment of the New City that the New City became entitled to bring any action and other proceeding which could have been brought by the Old City in relation to any land. For this reason, no distinction is drawn in these reasons between the Old City and the New City.[3] Both are referred to as the City.
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The action turns substantially upon the proper construction of the terms of the 1992 Deed, and whether the parties had subsequently manifested a mutual intention that the 1992 Deed should not be further performed or the obligations derived from the 1992 Deed had been discharged or varied.
This is a matter where the relevant dealings between the parties are thoroughly documented in writing.
The trial of the action proceeded by tendering into evidence the documents which recorded the dealings between the parties and the previous owner of the Land from 1991, through to August 2019, when the City claims that it accepted Tah Land's repudiation of the 1992 Deed.
The only witnesses who gave evidence at the trial were four expert witnesses, three of whom are expert planners who all gave their evidence concurrently, and a valuer who gave his evidence separately.
2.0 The City's case and the result
The dispute between the parties concerns whether the City was entitled to require Tah Land in 2019 to take all steps necessary to cause the subdivision and transfer to the City of a 1.5 ha area of land in the north-eastern corner of the Land, as the location of a Community Purposes Site, delineated in plans known as Plans SK6 (and L01) being plans submitted by Tah Land, to and approved by, the City in 1993.
The City alleges that Tah Land has repudiated the 1992 Deed and has purportedly elected to terminate the 1992 Deed. Tah Land denies that it is under any such obligation, and purported to terminate the 1992 Deed for alleged repudiation by the City.
The City claims damages in the amount that would place it in the position, so far as money can, in which it would have been had Tah Land not breached its obligations and repudiated the 1992 Deed. The City claims that had Tah Land performed its obligations under the 1992 Deed, it would have been required to do all acts and things necessary to cause the subdivision, and transfer of the Community Purposes Site to the City free of cost.
If not for Tah Land's breach and repudiation, the City claims it would, or there was a chance it would, have become the registered proprietor of the Community Purposes Site location, as delineated in
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Plan SK6 (and Plan L01). The quantum of the City's claim is therefore the value of the Community Purposes Site location identified in Plan SK6 (and Plan L01), or some proportion of that value discounted to account for exigencies.
Despite the fact that the documentary evidence shows that Tah Land attempted on more than one occasion, between 1994 and 2003, to take steps to subdivide the Land, to provide the City part of the Land identified in Plans SK6 and L01 (which steps at the time were actively discouraged by the City), the City claims that, save that it had the right to defer, it did not waive, vary or elect against the right to call upon Tah Land at any time of the City's choosing to cause the subdivision and transfer to the City of the area of the Land and identified in Plans SK6 (and L01).
The City also claims that it attempted to negotiate with Tah Land an alternative Community Purposes Site location, but did so without compromising their rights under the 1992 Deed, if no alternative site could be agreed.
I have found the City's action should be dismissed.
In summary, the reasons why I have made this finding is as
follows:
(1)
The 1992 Deed required that the Community Purposes Site was to be zoned Civic, subdivided and transferred to the City for the use of civic uses (and not for other uses).
(2)
In 1996 an agreement was entered into between the parties to extend time for compliance (by Tah Land) of its obligations pursuant to cl 3.1 and cl 4.1 of the 1992 Deed (which required Tah Land prior to commencement of trading of business on the Land to:
(a)
prepare or cause to be prepared at its cost the Plan of Subdivision (of the Community Purposes Site) and to do all acts and things necessary to obtain all clearances and approvals that are required from any relevant authority in order for the Department of Planning and Urban Development (DPUD) (by 1995 the Western Australian Planning Commission (WAPC)) to approve the Plan of Subdivision;
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(b) and submit the Plan of Subdivision to DPUD (later WAPC) for approval; and (c) transfer the Community Purposes Site to the City;) by which it was implied (in the agreement) that the City could call for Tah Land to perform the obligations (sometime after Tah Land had commenced trading of business on the Land in 1996) within a reasonable time.
(3) By 20 February 2019, when the City called for performance of the obligation in cl 3.1 of the 1992 Deed (to prepare or cause to be prepared at its cost the Plan of Subdivision of the Community Purposes Site) a reasonable period of time had passed. The result is that by this date Tah Land's obligations pursuant to cl 3.1 (and cl 4.1) of the 1992 Deed had ceased to bind Tah Land.
In light of these findings it is strictly not necessary to deal with many of the legal arguments put by the parties. However, as all the points of law pressed by the parties in their written and oral submissions were comprehensively argued, and because the factual findings relevant to the reasons why I have found the City's claim should be dismissed are interwoven with the facts relevant to the many of the other issues, I have, in these reasons, dealt with all of the points.
3.0 The chronological facts as disclosed in the agreed documents
3.1 The rezoning of the Land upon which Kingsway Shopping Centre was subsequently constructed, from rural to commercial, hotel, service industrial and service station - prior to the execution of the 1992 Deed
In June 1988, the City received a request on behalf of the then owners of the Land, Debkot Pty Ltd, to initiate an amendment to Town Planning Scheme No 1 (TPS 1) to rezone the Land from rural to accommodate several commercial uses.[4] The proposed amendment became Amendment 443.
On 29 July 1991, the City's Council, resolved to conditionally adopt Amendment 443 to TPS 1 rezoning the Land from rural to 'Commercial, Hotel, Service Industrial and Service Station' (Amendment 443) and forward it to the Minister for Planning and
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Urban Development for approval (the Minister). Council also resolved to:[5]
[A]dvise the applicant that before it will finalise the amending
documents, Council will require:
(a) a legal agreement ceding the land requirements for:
(i) Hepburn Avenue and constructing the full earthworks and one carriageway of that road between Wanneroo Road and Reserve 28053; (ii) a community purpose site; (b) all costs involved in the preparation, execution and stamping of the agreement to be paid by the developer.
As at September 1991, 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, which at that time was 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.[6] It was also thought to be desirable that a 1.5 ha Community Purposes Site be located adjacent to the northern boundary of the district centre site so that future land requirements for other facilities could be located in the abutting small landholdings to the north and to confirm the desirability of having road access from the district centre to the landholdings to the north (approximately midway between Wanneroo Road and the Kingsway Reserve).[7]
On 21 October 1991, Debkot Pty Ltd advised the City that it agreed to provide a 1.5 ha Community Purposes Site, on the proviso that the Minister granted final approval to Amendment 443 without modification on the terms specified in the City's letter dated 4 October 1991.[8]
The terms specified in the letter dated 4 October 1991 were that a 1.5 ha Community Purposes Site would:[9]
1. … be provided as a single parcel of land.
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2. … be zoned Civic under Town Planning Scheme No 1.
3. One hectare of the land will be ceded free of cost to Council. The balance of 0.5 hectare will be purchased from the owner under the proposed East Wanneroo Headworks Funding Scheme.
4. The value of the 0.5 hectare to be purchased will most likely be determined on the basis of englobo residential value, less servicing costs, however this matter needs to be further considered in the course of preparation of the East Wanneroo Headworks Funding Scheme, and the Valuer General's advice which may be forthcoming in that process.
On 27 November 1991, the Council resolved to approve the terms set out in the letter dated 4 October 1991.[10]
On 23 March 1992, the Minister declined to approve Amendment 443 without modifications to the total retail floor space of the proposed shopping centre, and the staging of retail development.[11]
On 6 May 1992, the Council resolved to defer consideration of the modifications until advice was received from Debkot Pty Ltd that they agreed to the ceding of the land for future road requirements for the intersection expansion of the south-eastern corner of the Land (the Intersection land).[12] At about that time, Debkot Pty Ltd entered into an agreement with Tah Land for Tah Land to purchase the Land.
By letter to the City dated 7 May 1992, Tah Land (as purchaser of the Land) agreed to the Minister's modifications.[13] In the letter, it was noted that:[14]
[T]he final dimensions and location [of the Community Purposes Site] can be resolved once the new Master Plan for the site is finalised by T & Z Architects. We understand that the aim of this exercise is to maximise the integration of the community facilities with the commercial development and further taking into account the requirements of other facilities in respect of the abutting small landholdings to the north.
| 27 | On 24 June 1992, the City approved Amendment 443, with the modifications as required by the Minister, and agreed to by Tah Land.15 |
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On 1 July 1992, the Land was transferred to Tah Land.16
On 2 September 1992, the City and Tah Land executed the 1992
Deed.17
On 28 October 1992, the Council resolved to adopt Amendment 443 in its modified form, and forwarded it to the Minister for final approval.18
On 16 November 1992, the Minister approved Amendment 443.19
Pursuant to Amendment 443, the Land was rezoned in TPS 1 from 'Rural' to 'Commercial, Hotel, Service Industrial and Service Station'. The parts of the Land designated in respect of each of these zones were shown on a Scheme Amendment Map which formed part of Amendment 443.20 A copy of the Scheme Amendment Map which formed part of Amendment 443 is annexed to these reasons as Annexure A.
In cl 1.1 of the 1992 Deed, the Community Purposes Site, was defined as a total area of 1,500 m2 which shall be located in orange on the Plan but at such specific location as is determined in its absolute discretion.
A copy of the Plan marked 'A' and annexed to the 1992 Deed, is annexed to these reasons as Annexure B. The Plan marked 'A' shows an orange circle approximately in the centre of and abutting the northern boundary of the Land.
3.2 First steps taken by Tah Land to subdivide the Land to create the Community Purposes Site and to commence development and construction of the Kingsway Shopping Centre
It is apparent from the following documents that Tah Land contemplated building a shopping centre that would be differently configured to what was shown as zoned 'Commercial' in the Scheme Amendment Map which formed part of Amendment 443.
15 Exhibit A, Tab 22, page 67.
16 Exhibit A, Tab 364 and 365: see also Tab 24.
17 Exhibit A, Tab 26.
18 Fifth amended statement of claim [8(a)]; admitted, defence [8].
19 Exhibit A, Tab 29 and Tab 30.
20 Exhibit A, Tab 22, page 66.
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On 24 May 1993, an application was made on behalf of Tah Land to DPUD to amalgamate and re-subdivide the Land, which would create, if approved, among other things, the 1.5 ha Community Purposes Site to be transferred to the City (which Tah Land claimed at that time was in accordance with the 1992 Deed).[21] A copy of the proposed subdivision plan is annexed to these reasons as Annexure C. The proposed subdivision plan shows a square 1.5 ha community use site bordering the north-eastern corner of the Land. The area of the proposed 'community use site' is well outside the orange circle depicted on the Plan marked 'A' and annexed to the 1992 Deed.[22]
On 26 May 1993, Allen Blood of Russell Taylor & William Burrell, consultants in town planning and civic design, on behalf of Tah Land, invited Oscar Drescher, the City Planner, to meet to discuss the location of the Community Purposes Site and adjustments to the zonings over the site. These discussions followed the preparation of a revised site layout by Tah Land's architects for the proposed shopping centre, including the delineation of a 1.5 ha Community Purposes Site.[23]
On 2 June 1993, Mr Drescher met with Mr Blood and Mr Johnston of Russell Taylor & William Burrell to discuss the development of the shopping centre on the Land. At the meeting it was agreed to modify the then current plan of subdivision by deleting the proposed lots along the Hepburn Avenue frontage and the Community Purposes Site.[24]
On 4 June 1993, Russell Taylor & William Burrell prepared an amended version of the plan of subdivision originally dated May 1993, which, relevantly, omitted the square 'community use site' of 1.5 ha previously shown in the north-east corner of the Land.[25] Annexed to these reasons as Annexure D is a copy of the amended version of the plan of subdivision prepared on 4 June 1993.
By letter dated 22 June 1993, Mr Blood of Russell Taylor & William Burrell wrote to the City, on behalf of Tah Land, regarding the meeting on 2 June 1993, setting out their understanding of the matters discussed at the meeting and stated:[26]
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1. Minister's Advice
I enclose for your information, a copy of correspondence received from the Minister for Planning which advises that, in the Minister's view, the full centre of 15,000m² can be constructed in one stage, provided it does not open for trading prior to 1995.
I confirm that our client proposes to commence development and construction of the centre during 1994 for opening early 1995.
2. Subdivision Application
As agreed, we have modified the current Plan of Subdivision by deleting the proposed lots along the Hepburn Avenue frontage
and the community purpose site … The Community Purpose
site will be the subject of a further application once the exact location of the site has been determined. As an alternative, it may be appropriate that Council request the Department to impose a condition on the subdivision approval which requires the setting aside of a 1.5ha community purpose site in a location to be agreed between the City of Wanneroo and the applicant. This approach means that the approval for the current application can be extended to include the community purpose site thus negating the need for a further subdivision application.
…
3. Community Purpose Site
As discussed at our meeting, it is proposed to set aside a Community Purpose site at the north-eastern corner of the site, which is in close proximity to both the commercial improvements and Kingsway Reserve. In accordance with our undertaking, we will provide information on proposed levels over the site at the earliest opportunity. I also confirm that our client is prepared to consider the possibility of constructing the private roadway through the Community Purpose site on the proviso that the area of the right of way is included within the 1.5ha site, and that Council is prepared to accept any reasonable matters that may occur on the northern and eastern boundaries of the site.
We would appreciate your earliest comments on the proposed location, shape and acceptability of the proposed internal road system through the Community Purpose site.
4. Scheme Amendment
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I confirm that we will be seeking an amendment to Council's District Planning Scheme to rationalise the boundaries of the Commercial zoning to reflect the revised site layout, to include a 1.5ha Community Use site, and to rezone land along the Hepburn Avenue frontage for Mixed Business purposes. Application for this rezoning can be made once we have agreed the location and configuration of the Community Purpose site with you.
On 14 July 1993, the Council considered the amended plan of subdivision dated 4 June 1993. The City Planner's report for that meeting stated:27
Of concern in the proposal is that Council, when entering into the legal agreement required the submission of a new plan of similar level of detail to the previous plan which makes provision for a community purpose site within the development. As yet the owners have not produced such a plan but have indicated that a community purpose site be set aside in the north-eastern corner of the site. If Council were to agree to that location a new plan would be prepared.
Council's aim is to integrate community purpose sites with commercial developments and not locate them away from centres of activity. There is a concern that the north-eastern site will not allow such an integration to take place.
It could be seen that by supporting a subdivision of the subject land, albeit at a distance from the proposed community purpose site, that the spirit of the legal agreement is not being achieved via the submission initially of an overall development plan of an adequate level of detail. However, the subdivision could have as a condition that 1.5 hectares of community purpose land be ceded in a location (or locations) acceptable to the City. A further condition will require an easement in gross for car parking circulation and access across all titles to be created.
On 28 July 1993, the Council noted:[28]
(a)
the City Planner advised on the Council's aim to integrate community purpose sites with commercial developments and not locate them away from the centres of activity; and
(b)
there is concern that the north-eastern site will not allow such an integration to take place.
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At the same meeting, the Council resolved to adopt the recommendation made by the City Planner to advise Russell Taylor & William Burrell, on behalf of Tah Land, that it supported the subdivision and amalgamation of the Land as featured in the plan of subdivision dated 4 June 1993, subject to conditions which included, relevantly, the provision of 1.5 ha of land for community purposes in a location (or locations) to be agreed between Tah Land and the City.
On 26 October 1993, the amended version of the plan of subdivision dated 4 June 1993 for the amalgamation and re-subdivision (subject to conditions which included the provision of a 1.5 ha location, or locations of a Community Purposes Site to be agreed between Tah Land and the City) was approved by DPUD on behalf of the WAPC.29 However, this plan of subdivision was never implemented by Tah Land.
3.3 Amendment 672 - creates a Civic zone in north-east corner of the
Land
Whilst subdivision of the Land to create a Community Purposes Site did not occur in 1993, Tah Land did pursue the rezoning of the Land to include part of the Land to be zoned 'Civic and Cultural'. By letter dated 7 October 1993, Russell Taylor & William Burrell, on behalf of Tah Land, 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' as shown on maps accompanying the request (Amendment 672).[30]
Part of proposed Amendment 672 was to create a 'Civic and Cultural' zone with an area of 1.5 ha in the north-east corner of the Land.[31]
The Scheme Amendment Report for proposed Amendment 672 prepared by Russell Taylor & William Burrell, on behalf of Tah Land, stated that:[32]
As a part of Amendment No 443 Council required that a 1.5 hectare Community purpose site and a 1.35 hectare area at the intersection of Hepburn Avenue and Wanneroo Road (for the possible future grade separated treatment of the intersection) were provided. These
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requirements are the subject of a legal agreement between the City of Wanneroo and TAH Land Pty Ltd. As a result of this agreement and its requirements a total redesign of the site has been necessary. Accordingly, it is now necessary to rationalise the zoning of the site in line with the modified site layout.
It is now proposed that the zonings are rationalised to 'Commercial, Mixed Business, Civic and Cultural Reserve and Service Station,' in accordance with the modifications to the proposed layout of the shopping centre as outlined on the attached diagram. It should be noted that the proposed amendment is in accordance with the existing zoning and intended use of the land and that the rezoning is simply a rationalisation of the locations of the proposed landuses. The rationale behind the modified shopping centre layout is discussed below.
3.0 Planning Issues
The original development proposal for Lots 2 and 3 included a Shopping Centre, a Hotel, two Service Stations and a Service industry area. However, since the inception of this design in the late 1970s the requirement for a 1.5 hectare Civic and Cultural area and the possible future requirements for major road works at the intersection of Wanneroo Road and Hepburn Avenue have been identified. As mentioned, these requirements have been agreed to and provided for by the owner of the land, TAH Land Pty Ltd in a legal agreement with the City of Wanneroo. In order to cater for these requirements the design and orientation of the proposed centre has been altered. Accordingly, it is now necessary to rationalise the current zonings to reflect the modified layout of the centre and to encompass the various landuses associated with the centre.
The proposed modifications to the centre are relatively minor in terms of the zoning of the land with the two service stations remaining in their original locations on the north west and south east corners of the property and the shopping centre remaining generally in the centre and to the north of the property. The major change to the layout of the site has been in the provision of a 1.5 hectare area in the north eastern corner of the site for civic and cultural use. This modification and the slight easterly movement of the shopping centre, to cater for possible future road works at the intersection of Wanneroo Road and Hepburn Avenue, has necessitated the movement of the original 'Service Industrial' area from the north eastern corner to the southern boundary of the site.
…
[S]everal aspects of the proposed shopping centre, including the provision of a 1.5 hectare Civic and Cultural site and the provision of land for possible future road works at the intersection of Wanneroo Road and Hepburn Avenue have been agreed to by the proponent and
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the City of Wanneroo in a legal agreement. 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.
It is to be noted that although Tah Land's planning consultants stated that it had been agreed that the 'Civic and Cultural' zone would be in the north-eastern corner of the Land, there is no evidence before the court that the City did in fact agree. Despite this, the City resolved to approve proposed Amendment 672 without considering whether the Community Purposes Site should be located in the proposed 'Civic and Cultural' zone of the north-eastern corner of the Land.[33] In the report to the Council for its consideration of proposed Amendment 672, the City Planner stated:[34]
Amendment No 443 to Town Planning Scheme No 1 was finalised in November 1992 and amended the zoning of the subject site to its current form. As part of Amendment No 443 Council required a 1.5 ha community purpose site and a 1.35 ha area of land required for the intersection of Hepburn Avenue and Wanneroo Road.
As a result of these requirements, a re-design of the site has been necessary and the rationalisation of zoning boundaries is required.
ASSESSMENT
The above requirements for the community purpose site and the road widening were the subject of a legal agreement between the owner, TAH Land Pty Ltd and the City of Wanneroo. For the owner to meet the requirements of the legal agreement, the design and orientation of the original concept has been altered. The rationalisation of the zoning boundary is required to incorporate the modified layout and meet the requirements of the legal agreement.
Amendment 672 was approved by the Minister, and took effect on 3 May 1994.[35] In the Scheme Amendment Report to the Minister signed by the Town Clerk, it was stated:[36]
As part of Amendment No 443 Council required 1.5 ha for a Community Purpose site in addition to 1.35 ha for road widening requirements at the intersection of Hepburn Avenue and Wanneroo Road. These requirements, forming part of a legal agreement between
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the City of Wanneroo and TAH Land Pty Ltd, have resulted in the need to redesign the site. Consequently, a rationalisation of the zonings is requested.
The proposed amendment is in accordance with the existing zonings and the intended use of the site. The modifications are minor with the two service stations remaining in their original locations on the north-west and south-east corners of the property and the shopping centre remaining generally in the centre and to the north of the property.
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.
Annexed to these reasons as Annexure E is a copy of the Scheme Amendment Map of Amendment 672 to TPS 1, showing the existing zoning, being the zoning before the amendment and the scheme amendment zoning effected by Amendment 672, showing the relocation of the original 'Service Industrial' area from the north-east corner to the south-west boundary of the site and the provision of an area larger than the 1.5 ha area in the north-east corner of the site for 'Civic' use.
In the meantime, Tah Land applied to the City for approval to develop the shopping centre on the Land, and submitted plans showing detail of the proposed retaining walls for the development of the shopping centre, whereby the layout of its built form appeared to cover the orange circle depicted on the Plan marked 'A' and annexed to the 1992 Deed, and depicted a 'Council site' in the north-eastern corner of the Land.[37]
On 9 February 1994, the Council noted that it had received a report from the City Planner and resolved to approve the application submitted by Sinclair Knight, on behalf of Tah Land, for Stage 1 earthworks and retaining walls greater than 2 m in height on the Land, subject to:[38]
7 The City's Community Purpose site being cut to the levels previously agreed upon as detailed on the development application;
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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;
9 Council being able to remove any sand for its requirement from the Community Purpose site within the timeframe;
10 The agreed levels for the Community Purpose site being achieved and stabilised with appropriate retaining works being undertaken on the proposed batters within three years.
Importantly, the Scheme Amendment Report from the City Planner provided to Council on 9 February 1994 stated that, 'Council shall note that the City's Community Purpose site is not incorporated into the first stage earthworks programme'.[39]
On 20 April 1994, Tah Land informed the City that it was reconsidering the design of the proposed shopping centre.[40] This appeared to be because of issues raised by the City which were of a material nature which Tah Land undertook to address in their revised concept.
On 21 April 1994, the City Planner, Mr Drescher, and Mr Darryl Butcher (also an employee of the City) met with Mr Tan Han Swee, Mr Eric Tan (directors of Tah Land), Ms Wendy Ang and Ms Diana Tan (of Tah Land), and Mr Peter Coney (of Coney Project Management (CPM)) to discuss the 1992 Deed.[41]
On 26 April 1994, Tah Land sent by facsimile to the City minutes that it had prepared of the meeting on 21 April 1994. The minutes stated:[42]
1.0 Shopping Centre Floor Area The shopping floor area is currently restricted to 15 000sqm. However, OD [Mr Drescher] stated that 'in time the Shopping Centre can expand, based on population growth, and City of Wanneroo is prepared to support the expansion on the basis that there is an integration between the Shopping Centre and the Council site'.
PC [Mr Coney] expressed that integration between the Shopping Centre and the Council site will be to the benefit of both the City
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of Wanneroo and TAH Land Pty Ltd and is more easily
achieved with the new concept design.
2.0 Council Site 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 with TAH Land. … 6.0 Integration TAH Land to prepare some concept sketches indicating the sort of design they would contemplate for stage 2.
On or about 8 August 1994, The Buchan Group, on behalf of Tah Land, developed revised plans for stages 1 and 2 of the development of the shopping centre on the Land, identified as Plans SK6, SK7, SK8, and SK10. Plan SK6 delineated as 'Lot 59', a 15,000 m2 area of land marked 'Community Facilities' in the north-east corner of the Land. Annexed to these reasons as Annexure F is a copy of Plan SK6.
On 15 August 1994, the City Planner (Mr Drescher) met with Mr Mike Connolly of The Buchan Group, Mr Coney and Ms Shelley Harrison of CPM to discuss Tah Land's revised design of the shopping centre on the Land which The Buchan Group had prepared in drawings submitted to the City in August 1994 (including Plan SK6). Notes of the meeting on 15 August 1994 were prepared by CPM that recorded the following discussion about the location of the Community Purposes Site:[43]
2.0
Council Community Facility Site - Oscar Drescher stressed the importance of maintaining an interface between the Council facilities and the Shopping Centre - Interface with recreation area to the East was not as important. He agreed that integration would be more readily achieved with the introduction of stage 2.
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No commitment could be given on stage 2 at this time however if the Council facilities are developed prior to stage 2 of the Centre appropriate interfacing would be considered by the Parties. It is envisaged that the Community Facilities site would remain as indicated.[44]
…
5.0 DA Requirements - Confirmed that a new application was not necessary as approval had not been issued on the existing application. Additional documentation required by Council was requested:
1. Written summary detailing the benefits of the new design and how Council Facilities can be integrated into this design.
On 19 August 1994, CPM submitted to the City an 'Architects Report', dated August 1994, summarising the benefits of the new design (including Plan SK6) for the development of the Land and how Council facilities could be integrated into the design, as requested by the City at the meeting on 15 August 1994. The Architects Report stated:[45]
LOCATION OF BUILDINGS
As indicated on the sketch drawings. The site has a fall from east to west towards Wanneroo Road and it is proposed that building platforms
will be created for near level building and carparking areas … The
buildings have been located towards Wanneroo Road to allow for future extension on the eastern end of the site. Gently sloping embankments will be integrated into the overall design to minimise retaining walls and visually harmonise into the surrounding levels.
…
COMMUNITY FACILITIES
A total site area of approximately 1.5 ha has been set aside for future Community facilities usage by the City of Wanneroo. It is intended that this site be linked by pedestrian pathways from internal access roads and also from internal circulation roads. Stage 2 will allow a much stronger integration of the community uses site by both being closer to the main centre and at a similar floor level for both access and parking. It is envisaged that the community facilities usage will be complimentary to the retail usage and will develop concurrently as both stage 1 and stage 2 are constructed.
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The City Planner, in a report for the Council's meeting on 28 September 1994, recommended that the Council should approve Tah Land's application to develop the shopping centre as revised in the modified revised plans submitted on behalf of Tah Land, subject to conditions. Attached to the report was a copy of a plan of the development prepared by The Buchan Group for Tah Land titled 'Landscape Concept Plan' and identified as Plan L01 (landscape plan), which delineates a lot marked as 'Lot 59' in the same location as Lot 59 depicted on Plan SK6. Annexed to these reasons as Annexure G is a copy of the landscape Plan L01.
In the report, the City Planner stated that the reason why Amendment 672 was made related to the requirement for the 1.5 ha Community Purposes Site and a 1.35 ha area of land for the intersection of Hepburn Avenue and Wanneroo Road, and went on to state:46
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
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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 resolved to approve Tah Land's application to develop the shopping centre. The resolutions carried by the Council were those set out in the City Planner's report.47
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By letter dated 7 October 1994, the Town Clerk of the City sent to CPM 'on behalf of Tah Land' an approval to commence development, attaching 28 conditions imposed by Council. None of the conditions expressly referred to the Community Purposes Site, but condition 27 provided:[48]
The legal agreement between Tah Land Pty Ltd and Council being modified to reflect the revised arrangements of this approval with all expenses (including the legal expenses incurred by Council) being met by the owner.
3.4 Tah Land's second attempt to subdivide the Land to create the
Community Purposes Site
On 1 February 1995, Crossland & Hardy Pty Ltd (consulting licensed surveyors) prepared for Tah Land a surveyed plan of subdivision of the Land which, among other things, proposed the creation of a lot identified as 'Lot 152' with an area of 1.5 ha in the same location described as 'Lot 59' in Plans SK6 and L01.[49] Annexed to these reasons as Annexure H is a copy of the proposed subdivision plan dated 1 February 1995.
On 14 March 1995, Tah Land lodged the proposed subdivision plan dated 1 February 1995, with the Ministry of Planning proposing a subdivision of the Land to create the Lot 152 of 1.5 ha in the north-eastern corner of the Land.[50] However, prior to the lodgement of the proposed subdivision plan, the City notified Tah Land that it wished to defer the creation of the Community Purposes Site.
In a memorandum of 7 February 1995 to the City Planner, the Co-ordinator, Statutory Planning (D Butcher) stated that:[51]
4. The creation of the Community Purpose Site at this stage would not enable the integration with Stage 1 as currently approved and we could not be certain of achieving integration with Stage 2.
5. The creation of the Community Purpose Site in this configuration [that is, Lot 152] - narrow site abutting eastern boundary - would result in either an isolated site at the elevated level or a reduced site area at a lower level. Neither option is acceptable.
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…
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.
This recommendation was conveyed to Tah Land by the Town Planner, Mr Drescher, in a letter dated 23 February 1995, as follows:[52]
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.[53]
By letter dated 11 April 1995, the WAPC advised the City that it had approved Tah Land's application under the Metropolitan Region Scheme for approval to develop the Land. The approval related only to Stage 1 of the proposed development, and excluded the Stage 2 proposal in Plans SK7 and SK8.[54]
In late November and December 1995, representatives of the City and Tah Land appear to have discussed the deferral of the transfer of the Community Purposes Site location. As a consequence, Tah Land amended its application to the WAPC to subdivide the Land to delete proposed Lot 152 for the site.[55] Annexed to these reasons as Annexure I is a copy of the subdivision plan dated 14 November 1995 submitted to the WAPC.
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In November 1995, Tah Land took steps to draft amendments to the 1992 Deed, by instructing legal practitioners, Parker & Parker.56 On 11 December 1995, CPM wrote to the City requesting that it advise what areas of the 1992 Deed would require amendment, and the nature of the amendments required, so that Tah Land's legal representatives could commence drafting changes to the 1992 Deed.[57]
On 22 December 1995, Mr Drescher, Councillor B Cooper, and Mr Coney and Ms Harrison of CPM, met to discuss matters relating to the shopping centre which included, retail/non-retail mix, perimeter fast food site, car parking ratios, subdivision of the 25-year lease land on the corner of Wanneroo Road and Hepburn Avenue, and amendment to the 1992 Deed. In minutes of the meeting prepared by CPM, it is stated:[58]
3.0 Amendment 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.
On 1 March 1996 and 21 March 1996, CPM, on behalf of Tah Land, wrote again seeking advice about the City's desired amendments to the 1992 Deed.[59]
By letter dated 22 March 1996, sent under signature for the Town Clerk, the City notified Tah Land of its proposed modifications to the 1992 Deed as follows:[60]
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:
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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.
…
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.
Representatives of Tah Land and the City met on 25 March 1996 to discuss outstanding planning matters, including making amendments to the 1992 Deed. The representatives subsequently conferred in writing about the terms of a letter of undertaking to be provided by Tah Land.[61]
On 9 April 1996, the City received a letter dated 27 March 1996, signed by Mr Han Swee Tan, on behalf of Tah Land, which stated:[62]
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.[63]
The City's response to the letter of undertaking was contained in a letter dated 19 April 1996, signed for, and on behalf of, the Town Clerk, which stated:[64]
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.
…
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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.
In the interim, on 11 April 1996, the WAPC approved, subject to conditions, Tah Land's application to subdivide the Land in accordance with the revised surveyed plan of subdivision dated 14 November 1995.65
On 3 May 1996, the City issued a Certificate of Classification which enabled the opening of the Kingsway Shopping Centre.[66]
On 13 May 1996, Mr Eric Tan of Tah Land sent a facsimile/memo dated 29 April 1996, to Mr Rod Peake (a City Planner) responding to the City's letter dated 19 April 1996, stating:[67]
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.
3.5 Tah Land attempts to amend the 1992 Deed after the opening of the Kingsway Shopping Centre in 1996 and attempts to reach an agreement to vary the 1992 Deed to allow for the transfer of part of the Land as the Community Purposes Site
On 18 November 1996, Tah Land sent to the City a draft deed of variation for the City's 'perusal'. The draft proposed the following variations in respect of the Community Purposes Site, among other provisions relating to other matters:[68]
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By inserting clause 3.2 as follows.
3.2
Notwithstanding 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:
4.4 Notwithstanding 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. (b) The title for the community purposes site shall include a covenant which will require any future rezoning of the community purposes site to be agreed upon by the owner.
The City did not respond to this draft deed of variation.[69]
On 2 June 1998, Tah Land resent a copy of the draft deed of variation to the City. Again, the City did not respond.
On 10 July 1998, First Pacific Davies, on behalf of Tah Land, wrote to the Council as follows:[70]
KINGSWAY CITY SHOPPING CENTRE
First Pacific Davies have been appointed by TAH Land Pty Ltd, owners of the abovementioned shopping centre, to assist on property matters for the centre.
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
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by TAH Land Pty Ltd included community facilities, which will be
handed over to the City of Wanneroo for development.[71]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.
The City did not respond to this letter from First Pacific Davies.
About 18 months later, Mr Raymond Tan met with Commissioner Rob Rowell[72] on 9 November 1999 to discuss, among other matters, the location of the Community Purposes Site on the Land, a Draft Centres Strategy and expansion of the centre. At the meeting, Mr Raymond Tan gave Mr Rowell a memo which stated as follows:[73]
WITHIN 3 YEARS from date unsure (stamped 8 Sep 1992) submit to Council a 'New Plan' for the Land, which include:-
(p 3 of Deed) [See Below]
• Community Purpose Site • Further Commercial Area New Plan
(p 5 of Deed) [Modified Plans known as SK 6, SK7 and SK 8 'New
Plan' Design adopted by Council 28/9/94, I20945]Plan prepared by owner to a standard required by and to the satisfaction of 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 Intersection Land is transferred
(c)
and contains any other details and matters required by the Council
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Community Purpose Site
(p 3 of Deed) [transfer deferred letter dated 22/3/96 ref 30/1031 606504 from Council, zoning and location finalised via Amendment 672 TPS No 1 and Plans SK6, SK7 and SK8]
15,000m2 of land to be transfer to Council at no cost prior to trading of any business situate on the Land at such specific location as is determined by the Council at its absolute discretion
On the following day, Mr Raymond Tan sent a facsimile to Commissioner Rowell, in which he stated:74
As there was insufficient time for me to explain further on our company's concern of the recommendations made by the Draft Centres Strategy, I was only able to provide my Memo to you dated November 9, 1999 and attachments providing evidence of the Council approval of our overall revised design plans SK6, SK7 and SK8.
Please allow me to give you a background of legal agreement (Deed between City of Wanneroo and Tah Land Pty Ltd stamped 8 Sep 92) which is still current and our concerns.
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 Deed is intended to facilitate the Centre's development and various transfers of the land free of cost to the City and Crown for the 'Intersection Land' in Wanneroo Road and Hepburn Avenue as well as the 'Community Purposes Site'. Further, Hepburn Avenue extension was constructed and also borne by us. These represent significant commitments from our company.
…
When the Draft Centres Strategy for City of Wanneroo was released, we were pleased that Kingsway City (Madeley) is proposed to the Town Centre in the hierarchy of centres in the City of Wanneroo which is recognising the importance and the future expansion of the Centre.
…
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
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zonings has been completed in accordance with the Deed. However, if the City can demonstrate feasibly alternative proposals, we 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.
A draft reply from Commissioner Rowell to Mr Raymond Tan was prepared, but there is no evidence that it was sent. The draft, however, simply stated that a meeting had been scheduled by the City's Director of Planning and Development, Mr Charles Johnson, and Tah Land's consultant, Mr Tony Shrapnel.75
3.6 Tah Land's plans to further develop the Land and its further attempts to transfer part of the Land for the Community Purposes Site and vary the 1992 Deed
About two years later (commencing in 2002), Tah Land took steps to attempt to further develop the Land through the development of an agreed structure plan. By that time, the City had put in place a new planning scheme by the adoption of District Planning Scheme No 2 (DPS 2) and Amendment 8160 TPS 1.[76] Clause 9.1.1 of DPS 2 provided that the Council may require the preparation and presentation to it of a structure plan as a prerequisite to the Council's support for a proposal to rezone or reclassify land in the District, or to subdivide or amalgamate lots, or the Council's consideration of an application for Planning Approval.[77]
In January 2002, Tah Land engaged Hames Sharley to develop a structure plan for the shopping centre to increase its floor space.[78]
On 9 May 2002, Hames Sharley wrote to the City stating it intended to conduct and facilitate a design workshop attended by key stakeholders and stated:[79]
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Whilst the landowner does not have any preconceived ideas about the outcomes of the design workshop or the Structure Plan generally, possible uses to be identified by the Plan may include entertainment, restaurants, residential, office, community facilities and retail development.
On 28 August 2002, Hames Sharley provided to the City a Kingsway City Shopping Centre draft structure plan.80
On 29 October 2002, The Buchan Group, on behalf of Tah Land, applied to the City for approval to develop the south-west corner of the Land, at the corner of Wanneroo Road and Hepburn Avenue (the Intersection Land).[81]
On 11 December 2002, Hames Sharley wrote to the City regarding the levels of the Land and the adjoining Community Purposes Site.[82]
On 14 January 2003, the City referred Tah Land's application to develop the Intersection Land to the Department for Planning and Infrastructure.[83]
On 13 March 2003, the City advised the Department for Planning and Infrastructure that it recommended Tah Land's application to develop the Intersection Land should be refused.[84]
Tah Land appealed the WAPC's deemed refusal to approve the application to the Town Planning Appeals Tribunal. In the context of that pending proceeding, from May 2003, representatives of Tah Land and the City met to discuss the transfer of the Intersection Land for which the 1992 Deed provided, and also discussed what variations to the 1992 Deed the City desired in respect of the Community Purposes Site.
On 13 May 2003, Mr Raymond Tan met with Mr Peake of the City. Following that meeting, by letter dated 27 May 2003, Mr Raymond Tan set out his understanding of the matters that were discussed and the matters that Tah Land would like to see addressed in
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a deed of variation to the 1992 Deed. In his letter, Mr Raymond Tan
set out the following:851. 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.
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…
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.
By letter dated 4 August 2003, Mr Peake from the City responded to Mr Raymond Tan's letter dated 27 May 2003, and provided a schedule of matters that 'the new deed should cover' which included, among other matters, some issues relating to the Intersection Land and:86
1. The identification, zoning, subdivision and transfer free of cost to the City of a 1.5 hectare area of land for community purposes when required by the City.
… 11.
A review of the recitals to reflect the background to the new deed.
… Please advise if you concur with the above schedule.
On 29 August 2003, Mr Raymond Tan responded by stating that he agreed with the schedule of matters, save in respect of several issues, one of which was:[87]
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1. 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.
On 10 February 2004, Tah Land's solicitors sent the City a draft deed of variation dated 6 February 2004, which proposed, among other amendments, the following amendments to the 1992 Deed:88
1. INTERPRETATION
1.1 Definitions …
'New Plan Plans' means plans SK6 endorsed by Planning and Urban Development 5 September 1994 File 3 30-1031-2 a photocopy of which is annexed to this Deed, SK7 endorsed by Planning and Urban Development 5 September 1994 File 3 30-1031-2 a photocopy of which is annexed to this Deed and SK8 endorsed by Planning and Urban Development 5 September 1994 File 3 30-1031-2 a photocopy of which is annexed to this Deed submitted by the Owner to the Council in compliance with clause 2.1(a) of the 1992 Deed.
…
2. COUNCIL'S ACKNOWLEDGEMENTS
The Council acknowledges that the Owner has complied with its obligations under:
(a)
clause 2.1 of the 1992 Deed by submitting the New Plan Plans of a standard required by and to the satisfaction of the Council; and
…
3. AGREED VARIATIONS
The Council and the Owner agree to vary the 1992 Deed as follows:
…
(b)
at clause 4.1 by deleting 'prior to the commencement of trading of any business on the Land' and inserting in lieu thereof 'for the Council to construct thereon a genuine community purposes facility only and the
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Owner agrees to effect the transfer as soon as is reasonably practical after the Council informs the Owner in writing that the Council has determined the nature of the facility to be situated on the Community Purposes Site and provided details of the nature of that facility to the Owner which facility must be a genuine community purposes facility unless the Owner's written consent to a non-community purposes facility is first obtained';
(c) at clause 4.2 first by deleting 'what the Council determines in its absolute discretion to be a sufficient amount of' and secondly by inserting 'acting reasonably' before 'shall determine'; (d) by inserting as clause 4.4 the following: 'If the Community Purposes Site is transferred to the
Council, the Council:
(a) unless clause 4.5 applies, must not: (i) amend or alter the Civic zoning of the Community Purposes Site or take any action whatsoever which may result in an amendment or alteration to the Civic zoning of the Community Purposes Site; or
(ii) transfer or otherwise dispose of the Community Purposes Site; and
(b)
must complete construction of the genuine community purposes facility in accordance with the details provided to the Owner under clause 4.1 before the expiry of the Community Purposes Site Construction Period (which timeframe is of the essence).';
(e) by inserting as clause 4.5 the following: 'If the Council has not completed construction of the genuine community purposes facility in accordance with the details provided to the Owner under clause 4.1 before the expiry of the Community Purposes Site Construction Period (which timeframe is of the essence) then, the Council shall forthwith cause the Community Purposes Site to be rezoned for commercial use and transfer the Community Purposes Site to the Owner free of consideration.'
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The City did not respond to the proposed deed of variation of the
1992 Deed.
The parties did, however, proceed with the transfer of the Intersection Land in 2004. 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:89
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 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'.
On 20 May 2004, Mr Raymond Tan met with the Director Community Development of the City, Ms Fiona Bentley. The day after the meeting, Ms Bentley sent an email to one of the elected members of the Council, Mr Sam Salpietro in which she stated:[90]
Sam, I met with Raymond Tan for the first time yesterday. Yesterday's meeting was at Raymond's request following a meeting he had with Roman and Rod Peake a few weeks ago. We briefed him and Tony Shrapnel on the Kingsway master plan and preliminary planning for a library outlet in the Madeley Darch area. We did discuss the land at Kingsway and indicated that we were considering a number of opportunities in the Madeley/Darch/Landsdale area where we have Community Purposes sites. We indicated that we would consider an opportunity to better integrate our site with the shopping centre so as to get better community access. We used the Clarkson Library project as an example. I did suggest that one option was for the City to sell the land to fund a project elsewhere in the vicinity if we couldn't agree on a specific use for that site.
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3.7 Tah Land proceeds with its plan to develop a structure plan for the future development of the Land which does not include a Community Purposes Site in the north-east corner of the Land
By 2004, DPS 2 enabled the making of two types of structure
plans.
The City created nine Cells for land in East Wanneroo and prepared structure plans for each of the Cells for the purpose of facilitating subdivision and development of the land comprised in each Cell.[91] The local structure plans for the Cells were made pursuant to pt 10 of DPS 2. Structure plans could also be made for areas within a Cell pursuant to pt 9 of DPS 2.
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conduct and having chosen one, is treated as having made an election from which he or she cannot resile once he or she has taken some benefit from the chosen course.'
In Halsbury's Laws of England, Vol 60 [962] the authors state:
'Thus a claimant, having two inconsistent claims, who elects to abandon one and pursue the other may not, in general, afterwards choose to return to the former claim and sue on it; but this rule of election does not apply where the two claims are not inconsistent and the circumstances do not show an intention to abandon one of them.
…
Importantly, the independent doctrine of approbation and reprobation requires there must be a choice between two inconsistent courses of conduct or claims.'
It is first necessary to make some observations about the City's argument that Tah Land has adopted a course of conduct inconsistent with its obligations under the 1992 Deed. It is the City's view that Tah Land adopted a course of conduct in which it treated the proposal of Amendment No 672 and Plan SK6 (and Plan L01) as compliance with, and performance of, its obligations under cl 2.1 of the Deed. It is common ground that it continued to do so right up until the amendment of its defence on 20 August 2019. The City argues that its determination of the location of the Community Purposes Site as the location specified in Plan SK6 (and Plan L01) was an essential element of its approval of Plan SK6 (and Plan L01) in 1994.
The City contends that Tah Land having approbated its submission of plans SK6 and L01 and the City's approval of those plans, together with the City's adoption of Amendment No 672, as performance of cl 2.1 of the Deed, Tah Land cannot now reprobate the determination of the site in that location by inconsistently asserting that the City did not validly determine the location for the purposes of the Deed.
It is the City's view that Tah Land must be held to the determination made by the City at Tah Land's request and for its benefit. It cannot now depart from that course of conduct by asserting that the City could not and ought not have approved the location specified in Plan SK6 (and Plan L01).
However, this argument must necessarily fall away on the facts found. Firstly because of the finding that the submission by Tah Land
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of Plan SK6 in 1994 constituted a 'New Plan' within the meaning of that
term in the 1992 Deed.
Secondly, whether the doctrine of approbation and reprobation applies so that Tah Land is unable to contend that the Community Purposes Site is not Lot 59 in Plan SK6 does not arise because of the finding that by 2019 the time for performance by Tah Land to lodge a Plan of Subdivision with the WAPC had expired, rendering the obligations on Tah Land pursuant to cl 3.1 and cl 4.1 of the 1992 Deed not binding.
Although it is not necessary to deal with Tah Land's argument that the City has approbated so as to engage the doctrine of approbation and reprobation in Tah Land's favour as the issue which was the subject of comprehensive argument, I make the following findings.
Tah Land contends that when the City entered into ASP 59, which involved the development and use of the Land in a manner radically divergent from a development and use involved in an obligation to subdivide and transfer to the City the area of the Land depicted as Lot 59 in Plan SK6 for community purposes, the City pursued a course of conduct which was inconsistent with any existing claim for the subdivision and transfer to it arising under the 1992 Deed.
Tah Land contends that the doctrine of approbation and reprobation is engaged in this case with the result that the City cannot resile from its chosen course and later assert a right to the subdivision and transfer to it the area of the Land depicted as Lot 59 in Plan SK6 for community purposes.
Tah Land contends that the negotiation and approval of ASP 59 by the City was an approbation by the City that:
(a)
the civic and cultural facility will be at the location provided for in ASP 59 and not in the location provided for in the 1992 Deed;
(b)
that Tah Land and the City would negotiate in good faith for an agreement for the provision of that civic and cultural facility to replace any obligations in the Deed; and
(c)
the area on the north eastern corner will be devoted to a predominately residential land use to be used for a
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predominantly 'mixed use / residential' development and not for
the provision of a civic and cultural facility.
Tah Land says that by that approbation the City took benefits in
the form of:
(a) obtaining valuable rights to require Tah Land to negotiate in good faith and enter into the new agreement for the provision of the new location of the Community Purposes Site to the City to replace the obligations under the 1992 Deed; (b) the capacity to insist on the provision of an agreement to its satisfaction concerning the provision of the civic and cultural facility in the location anticipated in APS 59 prior to approving Stage 1 of the redevelopment of the Land. By the terms of cl 6.1(i) of ASP 59 the entry into the new agreement was a prerequisite to the approval of Stage 1 of the redevelopment, unless the City was reasonably satisfied that it could be approved in its absence; and (c) the capacity to require the provision of arrangements to its satisfaction for the discharge of the obligation to enter into agreements for the provision of the civic and cultural facility prior to any subdivision or redevelopment by reason of the operation of cl 9.9 of DPS 2. By reason of cl 9.9 of DPS 2, the negotiation and entry into the new agreement was a prerequisite to any subdivision or redevelopment of the Land (including any subdivision of the area of the new location for the purposes of transferring that site to the City).
Tah Land claims these benefits gave the City a very powerful negotiating position in relation to the negotiation of the terms of the agreement for the provision of the civic and cultural facility in the location anticipated in APS 59 as Tah Land would be effectively required to comply with the demands of the City as to those terms if it wished to pursue its redevelopment anticipated in ASP 59.
The City disagrees. It says the City's Council never approved the final version of ASP 59 and it only ever approved the version submitted in August 2006, which did not contain any of the provisions on which Tah Land relies (particularly cl 5.1.3 and cl 6.1). This contention has
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not been made out on the facts found.[329] Clearly, the City approved the
final version of ASP 59.
The City also argues that when the terms of ASP 59 are properly construed and the conduct of the parties as revealed by the evidence rather than asserted by Tah Land is considered, it can be seen that there is nothing inconsistent with the City asserting its rights under the 1992 Deed. It says that:
(a) cl 5.1.3 and cl 6.1 of ASP 59 are premised on an expressed intention that Tah Land would negotiate and enter into a 'new reasonable agreement' with the City to vary the terms of the 1992 Deed 'on reasonable terms'; (b) cl 5.1.3 and cl 6.1 of ASP 59 are premised on the enforceability of the 1992 Deed, and do not impose any obligation on the City. They are limitations on the proponent's ability to develop Stage 1 of the proposed redevelopment, unless the City was 'reasonably satisfied' that redevelopment could be approved in the absence of agreement; and (c) in any event, in the absence of a judgment or order, a public authority exercising statutory power cannot for the purposes of the doctrine of approbation and reprobation make a binding election between a valid and invalid course because of the choice simply cannot arise. If the approval of the structure plan was the only valid decision to make, having regard to the considerations relevant for making such a decision under the statutory regime, then the doctrine of approbation and reprobation can have no effect.
The City's arguments on these points ignores firstly that as found it had been agreed by Tah Land and the City by the time the draft of ASP 59 was submitted to the City in August 2006 that the area of the Land depicted as Lot 59 in Plan SK6 was not a suitable site for the location of civic and cultural facilities and by the adoption of ASP 59 a new location for a civic and cultural facility had been agreed and what was left to be negotiated was the size, form, nature and tenure of the community and cultural facility. Secondly, as found in 4.7.2 the approval by the City of ASP 59 was not solely for the purpose of the execution of the City's statutory duties but also was to deal with the outstanding obligations owed by Tah Land pursuant to the 1992 Deed.
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The City also contends that the doctrine of approbation and reprobation is inapplicable because of the absence of any benefit accrued to the City by the adoption of ASP 59. It says the City did not acquire any right to require Tah Land to negotiate a new agreement as the relevant provisions of ASP 59 operated as a limitation on Tah Land's ability to develop land unless, and until an agreement on reasonable terms was executed with the City. A limitation on a proponent's ability to develop does not correlate with a right to require negotiation and agreement. For instance, the proponent might choose never to develop. Even if the proponent did choose to develop, any decision to approve or refuse to approve a development application would, again, be an exercise of statutory power. This contention in my view has merit.
The City also argues that illusory nature of the benefit Tah Land alleges, the City acquired to require the negotiation and agreement of a new agreement prior to approval of an application to develop Stage 1 is demonstrated by the evidence. The City claims that Tah Land applied for development approval without having negotiated, let alone agreed, the new agreement. It then immediately applied to the Tribunal for review of the City's deemed refusal of the application, effectively depriving the City of the right it asserts the City had under cl 6.1. This reveals that there was not, in fact or in law, any such benefit or right at all. I do not agree with this point as the evidence establishes that the negotiations for a new library failed in mid-2011. By July 2011, it was clear that the City had not budgeted for a new library in their 10 year capital works program and the City insisted that the library area be excluded from the development application. Consequently, I am not persuaded by the City's argument on this point.
However, I do agree that the City did not obtain a 'benefit' from the approval of ASP 59. This is because the real benefit to the City of ASP 59 was to identify a suitable new location for the provision of a community and cultural facility by rezoning the Land as provided for in the Development Control Plan. The effect of the approval of the Development Control Plan of ASP 59 had the effect in 2010 to rezone the area of the Land depicted in Lot 59 of Plan SK6 Residential and Open Space and identified a new location of the Community Purposes Site by rezoning a smaller area of the Land as Mixed Use (Civic) in an area of the Land (allowing for some flexibility of the boundaries of such a site as contemplated by any agreed structure plan and the matters yet to be agreed between the parties).
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However, I am not satisfied that the fixing of the new location of an area of the Land for community purposes by the rezoning provided a benefit to the City for the purposes of the doctrine of approbation and reprobation. This is because the new location that was rezoned by ASP 59 for a civic and cultural facility was an area of the Land that was in 2010 the subject of a restricted covenant by operation of a 25 year lease in favour of Big W for the purposes of a car park which was not due for expiry until sometime in 2023.[330] This became known to the City at least by 2011 and at that point in time the City and Tah Land were negotiating a different temporary location for a civic and cultural facility, namely a library to be integrated into the first and second floor of the extended shopping centre of proposed Stage 1 of the development.[331] In these circumstances, it cannot be found the City obtained a 'benefit' so as to attract the doctrine of approbation and reprobation.
The City's right to refuse development approval without a new integrated civic and cultural facility cannot be said to be a right that is in addition to the City's rights that it otherwise had as a planning authority to approve a development application for land pursuant to cl 9.9 of DPS 2. In any event, Tah Land consented to the exclusion of the library from the development application (albeit at the City's insistence) in 2011, which the Tribunal by order approved on 7 October 2014.
Whilst ASP 59 and the effect of State Planning Policy 4.2 require further development of the Land to make provision for integrated community facilities, once it was known by at least 2011 that a civic and cultural facility could not be built in the area of the Land that was identified as the new location for a civic and cultural facility in ASP 59, it cannot be said that the City had obtained any real and tangible 'benefit' in any requirement by Tah Land to enter into an agreement on reasonable terms (that is to negotiate in good faith, assuming that such a term can be implied) to facilitate the relocation of the Community Purposes Site to a new location identified in ASP 59, that is the location over which Big W had the benefit of a restricted covenant.
In these circumstances, it cannot be found that the City received a benefit from its chosen course so as to attract the doctrine of approbation and reprobation as it cannot be found that the City accepted a benefit conferred on it by ASP 59.
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For these reasons, Tah Land's argument on this point must fail.
5.0 Quantum of loss and damage if liability was established
Although I have found that the City's claim should be dismissed on grounds that liability is not established, if I am wrong in making the finding that the time for the City to call for performance of the obligation on Tah Land to subdivide and transfer the Community Purposes Site depicted as Lot 59 in Plan SK6 had passed by the time the City made the call for performance in 2019, I would make the following findings in respect of loss and damage.
5.1 Principles - expectation loss
In Moore v Scenic Tours Pty Ltd, Edelman J recently observed:[332]
The primary species of damages for a breach of contract are often expressed as 'expectation damages' or as responding to an expectation
loss". … However, the expressions are problematic. In particular, they
can conceal a fundamental difference between two components of compensatory damages for breach of contract, both of which are necessary parts of the compensatory goal of restoring the injured party to the position they would have been in if the breach had not occurred. Those components are compensation directly for the performance
interest and compensation for consequential losses…
Where contract damages provide compensation directly based on the performance interest, that component of the award is not concerned with loss in any real or factual sense. The compensation for the performance interest, 'by the value of the promised performance', appears 'as a "loss" only by reference to an unstated ought'. The aim of this component of the award is to provide the promisee with the difference between the value of what was promised and the value of what was received. The promisee had a primary right to performance of the contract so, upon termination, the law generally provides for a secondary right for the value of the performance that was not received or the difference in value due to the defect.
5.2 Assessment of damage and loss
Assuming the City established a repudiation of the 1992 Deed by Tah Land to prepare and submit a survey plan of subdivision to subdivide the Community Purposes Site depicted as Lot 59 in Plan SK6 from the Land, how should damages be assessed is contingent upon the following questions, which turn upon what was promised to the City:
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(1) If the City is entitled to damages on the basis of the loss of a commercial opportunity to become the registered proprietor of the Community Purposes Site in April 2019 measured by reference to its market value, what is the value of the site if the Community Purposes Site pursuant to the terms of the 1992 Deed could be used only for purposes within the zoning 'Civic and Cultural'? (2) If (a) applies, what is the percentage of the loss of a commercial opportunity and has the City established the market value for the site that can only be used for the purposes within the zoning of 'Civic and Cultural'? As to the latter part of the question if Tah Land had applied for subdivision of the Land to create a separate lot in the location of the area land depicted as the site of Lot 59 depicted on Plan SK6, would the WAPC have approved the subdivision, even if the 1992 Deed could be construed to allow for the provision of civic and community facilities in combination with the designated uses in ASP 59 of residential and open space? (3) If the City is entitled to damages on the basis of the loss measured by reference only to a commercial opportunity in April 2019 to obtain the market value of the Community Purposes Site:
(a) by becoming its registered proprietor by regard to its potential to rezone the Land to allow its highest and best use what is that value; and (b) should the City's damage and loss be assessed by the value of its costs and losses, if any, arising from the requirement that the City provide community services intended to be provided from the Community Purposes Site from another site, and if so has the City established its damage and loss on this basis?
The City points out that the uncontested evidence of its valuer, Mr Rowan Hemsley, is that, as at 5 March 2019, the market value of the Community Purposes Site (being the area of the Land depicted as Lot 59 in Plan SK6) of 1.5 ha by regard to the potential to rezone the land to allow its highest and best use was $3,700,000.[333]
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Tah Land concedes that on the assumption that the court concluded that: (1) the Community Purposes Site for the purposes of the Deed is Lot 59 in Plan SK6; and (2) Tah Land repudiated the Deed in 2019; and (3) that it was within the reasonable contemplation of the parties at the time the 1992 Deed was entered into that, as a result of a breach, the City would lose a commercial opportunity to become the registered proprietor of the Community Purposes Site on a basis other than a 'Civic' zoning (including the high density residential development provided for in ASP 59), then Tah Land does not contend that:
(a) the value of the commercial opportunity should be discounted by reference to the possibility that the WAPC would not permit the subdivision; (b) the value of the commercial opportunity should be discounted by reference to any conditions or modifications to the lot which the WAPC may require as a result of or in order to achieve the subdivision; and (c) the value of Lot 59 on the basis it is used for a high density residential use is other than as the City contend.
If the City had succeeded on the basis that as a result of a breach by Tah Land it would lose a commercial opportunity to become registered proprietor of the Community Purposes Site on the basis other than to use that area of the Land for community purposes, then it is irrelevant whether the City may wish to sell that site for the purposes of the provision of community facilities on other land within the limits of the City. It follows, therefore, it is not necessary to deal with the issue identified in [481(3)(b)].
If, as found, the City could only use the whole of the area of the Land depicted as Lot 59 in Plan SK6 for community purposes, and regard is had to my finding that the evidence of each of the planners that the WAPC would not approve a subdivision of the Land in such circumstances, then the City's claim for loss and damage, if assessed on this basis, would necessarily fail.
If, however, the 1992 Deed could be construed to allow for the provision of civic and community facilities on part of the area of the Land depicted as Lot 59 in Plan SK6 in combination with the uses Residential and Open Space as provided for in ASP 59, which finding would necessarily require the acceptance of Mr Allerding's evidence on
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this point, it is his expert opinion that there is a 15% chance that the WAPC would approve an application for subdivision of the Land. In such a case, Tah Land accepts that the percentage commercial opportunity that the City had in April 2019 to become the registered proprietor of the Community Purposes Site should be assessed at the percentage figure given by Mr Allerding. That is, the value of the commercial opportunity should be discounted by reference to the possibility that the WAPC would not permit subdivision.
Because the current 'Civic and Cultural' zoning of the site under DPS 2 does not permit use of the site for multiple dwellings, DPS 2 would have to be amended to 'Mixed Use' or 'Urban Development' to permit this proposed use. However, it was the unanimous opinion of all the expert planning experts that the WAPC was likely to approve such rezoning at the appropriate time.[334] Consequently, if the City's loss and damage was to be assessed on this basis, the quantum of its loss would be $555,000, being 15% of $3,700,000.
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Annexure A
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Annexure B
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Annexure C
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Annexure D
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Annexure E1
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Annexure E2
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Annexure F
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Annexure G
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Annexure H
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Annexure I
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Annexure J
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Annexure K
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Annexure L
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Annexure M1
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Annexure M2
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Annexure N
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I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Secretary
7 JULY 2020
[1] Fifth amended statement of claim [1A]; admitted defence to fifth amended statement of claim [1A].
[2] Fifth amended statement of claim [1] and [40AA]; admitted defence to fifth amended statement of claim [1]
and [40AA].
[6] Exhibit A, Tab 7, pages 32.
[7] Exhibit A, Tab 7, page 33.
[8] Exhibit A, Tab 10, page 37.
[11] Exhibit A, Tab 15, page 48.
[12] Exhibit A, Tab 19, pages 52 - 53.
[13] Exhibit A, Tab 20, pages 54 - 56.
[22] A copy of the Plan annexed to the 1992 Deed is annexed to these reasons as Annexure B.
[23] Exhibit A, Tab 44.
[24] Exhibit A, Tab 48.
[25] Exhibit A, Tab 47B.
[26] Exhibit A, Tab 48. 27 Exhibit A, Tab 49A
[28] Exhibit A, Tab 50A. 29 Exhibit A, Tab 56A.
[30] Exhibit A, Tab 55.
[31] Exhibit A, Tab 55.
[34] Exhibit A, Tab 58, pages 468 - 469.
[35] Exhibit A, Tabs 78 and 79.
[40] Exhibit A, Tab 77.
[41] Exhibit A, Tab 404.
Land that had been rezoned by Amendment 672.
[45] Exhibit A, Tab 88. 46 Exhibit A, Tab 93. 47 Exhibit A, Tabs 93 and 94.
[48] Exhibit A, Tab 95.
[49] Exhibit A, Tab 98.
[50] Exhibit A, Tab 116.
[53] Tah Land contend that the 1992 Deed did not require the transfer of a Community Purposes Site prior to
retail trading commencing on the site.
[55] Exhibit A, Tab 113. 56 Exhibit A, Tab 112.
[57] Exhibit A, Tab 114.
[58] Exhibit A, Tab 115.
[59] Exhibit A, Tabs 120 and 121.
[62] Exhibit A, Tab 125.
[63] It is common ground that the Architectural Site Plan referred to in this letter is Plan SK6.
[64] Exhibit A, Tab 129. 65 Exhibit A, Tab 127.
[66] Exhibit A, Tab 131.
[67] Exhibit A, Tab 130.
12 months which was not a matter that was agreed. Further, that the covenant proposed in cl 4.4(b) was
contrary to the provisions of the original deed and was a potential fetter which was likely to be construed as
unenforceable.
SK6 and is not land designated as the Community Purposes Site in the 1992 Deed.
[73] Exhibit A, Tab 175. 74 Exhibit A, Tab 176. 75 Exhibit A, Tab 177.
[76] On 6 July 2001, DPS 2 was published in the Gazette, pages 3331 - 3341. The 'Civic' zone provided for in
Amendment 672 became 'Civic and Cultural' in DPS 2.
[77] Exhibit A, Tab 185, page 1761.
[78] Exhibit A, Tabs 188 - 191.
[79] Exhibit A, Tab 191. 80 Exhibit A, Tab 193.
[81] Exhibit A, Tab 195.
[82] Exhibit A, Tab 197.
[83] Exhibit A, Tab 198; the Department of Planning and Infrastructure was formerly known as the Department
of Planning and Development (DPUD).
[87] Exhibit A, Tab 204. 88 Exhibit A, Tabs 207. 89 Exhibit A, Tab 211; it should be noted that Lot 888 was at that time a description of the Land on which the
shopping centre was built and formed 15.8862 ha, being Lot 157 of Swan Location 662 on Plan 23285 as at
2003; Tab 207, page 1963 and included that part of the land which had been previously identified in the 1992
Deed, in SK6 and L01 for a community purposes site.
[92] Exhibit A, Tab 231.
[93] Exhibit A, Tab 231.
[94] Exhibit A, Tab 231, page 2095.
[97] Exhibit A, Tab 235.
[98] Exhibit A, Tab 235; the Madeley Centre is the Kingsway Shopping Centre.
[99] Exhibit A, Tab 234.
[100] Exhibit A, Tab 235.
[103] Exhibit A, Tab 237, page 2134.
[104] Exhibit A, Tab 237, page 2139.
[105] Exhibit A, Tab 237, page 2140.
[110] Exhibit A, Tab 238.
[116] Exhibit A, Tab 249, page 2448. 117 Exhibit A, Tab 254, page 2516.
[118] Exhibit A, Tab 254, page 2517.
[124] Exhibit A, Tab 264, page 2598.
[131] See schedule exhibit A, Tab 275.
[136] Exhibit A Tab 280, pages 3038 – 3039
[137] Bellerive Boulevard is a road that is planned to run north from Hepburn Avenue on the eastern side of the
Land and immediately pass the north-east corner of the Land.
[138] Exhibit A Tab 280, pages 3101 - 3102.
was built by 1996, prior to the opening of the shopping centre.
[143] Exhibit A, Tab 283, pages 3249 - 3250.
[144] Exhibit A, Tab 285, page 3267.
[145] Exhibit A, Tab 285, page 3267.
[148] Exhibit A, Tab 285, page 3269.
[149] Exhibit A, Tab 285, page 3269.
[150] Exhibit A, Tab 285, page 3269.
[151] ts page 233.
[152] ts page 550.
[153] Exhibit A, Tab 286, page 3276. 154 Exhibit A, Tab 286, page 3275.
[155] Exhibit A, Tab 287. 156 Exhibit A, Tab 288.
[157] Exhibit A, Tabs 304 and 307, pages 3334 and 3348; see Annexure E of these reasons. The Civic zone in
TPS 1, later became 'Civic and Cultural' in DPS 2.
[161] Exhibit A, Tab 322.
minutes of meeting attended by Mr Kosova and other senior officers of the City record that Mr Kosova stated
at the meeting that the Big W lease was reason why it may be appropriate to locate the library at the town
square on a temporary basis until further redevelopment of the shopping centre. There is also dispute least on
behalf of Tah Land as to whether the statement by the architect that the location of a library in an area
covered by a restricted covenant was not allowed.
[167] Exhibit A, Tab 326. 168 Exhibit A, Tab 329. 169 Exhibit A, Tab 328.
[170] Exhibit A, Tab 330.
[171] Exhibit A, Tab 330.
[174] Exhibit A, Tab 336. 175 Exhibit A, Tab 338.
[176] Exhibit A, Tab 343.
[177] Exhibit A, Tab 366. 178 Exhibit A, Tab 354.
[179] Exhibit A, Tab 356.
[180] Exhibit A, Tab 399.
was also known as proposed Town Planning Scheme No 21 (TPS 21). The Minister had misgivings
concerning the proposed TPS 21 and it was eventually abandoned by the City in May 1994. Consequently,
the City claims it is entitled to the transfer of the Community Purposes Site at no cost to it.
[187] Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [42(2)].
[188] Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [42(10)].
[189] Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [42(10)].
[190] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104
[47] - [49] (French CJ, Nettle & Gordon JJ). (footnotes omitted)
[191] Recital F dealt with the proposed East Wanneroo Funding Headworks Scheme.
[192] Except if the City were to receive sufficient funding from the 'proposed East Wanneroo Funding
Headworks Scheme' and if so the City was required by cl 4.2 of the 1992 Deed to purchase 0.5 ha of the
[194] A copy of the Plan is annexed to these reasons as Annexure B.
New Plan were inserted into the material provisions of the 1992 Deed. The bolding of the defined terms has been added.
[197] Community Purposes Site is defined in cl 1.1 of the 1992 Deed and shown underlined in the square
brackets in this quote.
[198] The Plan is defined in cl 1.1 of the 1992 Deed and is shown underlined, in italics and in round brackets.
[199] New Plan is defined in cl 1.1 of the 1992 Deed and shown in italics in the square brackets in this quote.
[200] The Plan is defined in cl 1.1 of the 1992 Deed and is shown underlined, in italics and in round brackets.
[201] Community Purposes Site is defined in cl 1.1 of the 1992 Deed and shown underlined in the double square
brackets in this quote within the inserted definition of New Plan.
[205] JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16 [42]; Fazio
v Fazio [2012] WASCA 72 [74]; Porter v Sundance Resources Ltd [No 2] [2015] WASC 493 [166].
[206] Exhibit A, Tab 50A.
[209] Exhibit A, Tab 95.
[210] Exhibit A, Tab 93, page 798.
[213] Fifth amended statement of claim [21A]
[218] Although this point was not expressly pleaded it was raised by the City's counsel in opening, see
ts 132 - 133, 140.
[219] Plaintiffs closing submissions [41].
[222] Exhibit A, Tab 122. 223 Exhibit A, Tab 125.
[224] Exhibit A, Tab 124.
[225] Compare the handwritten notations made by a representative of the City to the draft letter comprising
Exhibit A, Tab 124 with the terms of the letter signed on behalf of Tah Land on 27 March 1996 comprising
Exhibit A, Tab 125.
[226] The issues relating to parking bays in this document is immaterial to the terms of any agreement reached
in respect of the Community Purposes Site.
[227] Exhibit A, Tab 129.
[228] Exhibit A, Tab 130.
(cases referred to and footnotes omitted)
Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34; (1929) 43 CLR 310, 317; Tern Minerals NL v
Kalbara Mining NL (1990) 3 WAR 486, 494 - 495; Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd
[2000] WASCA 27 [24] - [25].
McTiernan, Webb, Kitto & Taylor JJ).
applied in Equus Financial Services Ltd v Beagle Holdings Pty Ltd [2002] WASCA 273 [13] - [14]
(Fitzgerald AJ, Anderson & Parker JJ agreeing); Handley v Gunner [2008] NSWCA 113.
[238] Equus Financial Services Ltd v Beagle Holdings Pty Ltd [2002] WASCA 273 [13] (Anderson &
Parker JJ agreeing).
[240] Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537, 556.
[241] Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1982) 149 CLR 537, 567 - 568. (footnotes
omitted)
[242] Rudi's Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568, 575 - 576 (Priestley & McHugh JJA agreeing);
applied Handley v Gunner [2008] NSWCA 113 [97]; applied in Coal Hub Pty Ltd v NSL Consolidated Ltd
[No 4] [2018] WASC 41 [168] (Banks-Smith J).
(Banks-Smith J).
Parker JJ agreeing).
[247] See the discussion in Dockpride Pty Ltd v Subiaco Redevelopment Authority [2005] WASC 211
[151] - [156].
FLR 433 [150] - [154] (Pullin & Murphy JJA agreeing).
[253] Exhibit A, Tab 203.
[254] Exhibit A, Tab 204.
[255] Exhibit A, Tab 204. It should be noted that at least by this statement in 2003, that from Tah Land's point
of view that the time for the City to call for performance of the obligation on Tah Land to subdivide and
transfer to the City the Community Purposes Site had not passed. It is also to be noted that in the letter from
Mr Raymond Tan dated 17 May 2003 referring to the meeting of 13 May 2003, that Mr Tan made it clear
that was also Tah Land's view that the transfer of the Community Purposes Site could remain deferred until
the City determines what facility is to be provided so as to integrate with the Kingsway Shopping Centre;
Exhibit A, Tab 199.
[125(2) - (3)].
[259] Exhibit A, Tab 231, page 2095.
[260] Exhibit A, Tab 231, page 2088.
[261] State Planning Policy 4.2 was published in the Gazette on 31 August 2010.
262 Exhibit A, Tab 269. 2626.
[265] Exhibit A, Tab 241.
[266] Exhibit A, Tab 241.
[267] Exhibit A, Tab 247. 268 Exhibit A, Tab 254.
[269] Exhibit A, Tab 261.
[270] Exhibit A, Tab 269, pages 2625 - 2627.
[273] Exhibit A, Tab 271.
[277] Heydon JD, Heydon on Contract, (2019) [5.400].
[278] Exhibit A, Tab 283.
[279] Exhibit A, Tab 285.
[280] ts, page 550.
[281] Exhibit A, Tab 321. 282 Exhibit A, Tab 323.
[283] Exhibit A, Tab 325.
[284] On 19 October 2015, the substantive provisions of the Planning and Development (Local Planning
Schemes) Regulations 2015 (WA) commenced.
[285] Fazio v Fazio [2012] WASCA 72 [74] (Pullin & Newnes JJA agreeing); see also JR Marine Systems Pte
Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16 [42] (Pullin & Newnes JJA agreeing).
[286] Clause 5.1.3 of ASP 59, exhibit A, Tab 280 page 3034; Council resolutions made on 15 May 2007
(exhibit A, Tab 239) and 29 July 2008 (exhibit A, Tab 254).
[287] See the discussion in the statutory context of the use of the words 'orderly and proper planning' by
Pritchard J in Marshall v Metropolitan Regional Development Authority [2015] WASC 226 [178] - [182].
[288] Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165, 172.
[289] Exhibit A, Tab 266, page 2609.
[290] Exhibit A, Tab 50A.
[291] Exhibit A, Tab 98.
[292] Exhibit A, Tab 93
[293] Exhibit A, Tabs 99 and 101. 294 Exhibit A, Tabs 99 and 101.
[295] Plaintiff's opening submissions ts 29.
[296] Witness evidence Mr Hajigabriel ts 422, 439 and 462.
[297] See letter to Mr Shrapnel dated 16 February 2010 from Mr Kosova sent 'without prejudice to the Council's
formal position'; exhibit A Tab 266, page 2609.
[298] See s 77(1)(a) of the Planning and Development Act 2005 (WA). The State Planning Policy 4.2 remained
in force at the time of hearing of this action.
[299] Planning and Development Act 2005 (WA) s 138(3).
[300] Exhibit A, Tab 278, page 2784.
[301] Exhibit A Tab 269, page 2626.
[302] Exhibit A Tab, 262, pages 2579 and 2584. A copy of this plan is annexed to these reasons as Annexure K.
[303] Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 [23] - [29] (Quinlan CJ). (footnotes
omitted)
[304] Exhibit A, Tab 278, page 2787. 305 Exhibit A, Tab 278, page 2793.
[306] Exhibit A, Tab 278, page 2794.
[307] Exhibit A, Tab 278, page 2794.
[308] Exhibit A, Tab 278, page 2795. 309 Exhibit A, Tab 199, page 1894. 310 Exhibit 5 [41].
[311] Exhibit 5 [46] and [50].
[312] Exhibit 4 [81].
[313] Exhibit 4 [84].
[314] Exhibit 4 [87] - [88]. 315 Exhibit 4 [89] - [90].
[316] Exhibit 4 [91].
[317] Exhibit 7.
[318] Exhibit 7 [1] and [2].
[319] Exhibit 7 [5].
[320] Exhibit 2 [49].
[321] Exhibit 2 [52].
[322] Exhibit 2 [87] and [71].
[323] Agenda of Topics for Planning Evidence dated 25 November 2019 [12] - [13].
[324] ts, page 421.
[325] Exhibit 7 [4] and [7].
[326] Exhibit 7 [6].
[327] ts page 417, 424, 428 and 431.
[328] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211;
(2008) 38 WA 276 [109] - [110].
[329] See 4.7.1 and 4.7.2 of these reasons.
[330] ts, page 380.
[331] Exhibit A, Tab 285.
[332] Moore v Scenic Tours Pty Ltd [2020] HCA 17 [63] - [64]. (footnotes omitted)
[333] Exhibit 8 [103].
[334] Exhibit 7, Agenda of Topics for Planning Evidence, dated 25 November 2019, [13].
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