Civil Properties Pty Ltd v Miluc Pty Ltd

[2012] HCASL 98

CIVIL PROPERTIES PTY LTD

v

MILUC PTY LTD

[2012] HCASL 98
P49/2011

1. The applicant and the respondent are both property developers.  At the material time each owned lots on either side of Apricot Street, Forrestfield, a suburb of Perth.

2. The applicant brought proceedings in the District Court of Western Australia (Stevenson DCJ) claiming a contribution from the respondent for costs it incurred in upgrading Apricot Street. The claim was brought under s 159(1) of the Planning and Development Act 2005 (WA) ("the Act"), which makes provision for a person, the original subdivider, to recover from a later subdivider one-half of the reasonable cost borne by the original subdivider of upgrading the part of an existing road which has a common boundary with the lot or lots held by the later subdivider where the later subdivider did not contribute to that cost.

3. Stevenson DCJ dismissed the claim, holding that an amount paid by the respondent to the Kalamunda Shire amounted to a contribution to the cost of the upgrade for the purposes of s 159(1) of the Act.

4. An appeal to the Court of Appeal of the Supreme Court of Western Australia was dismissed (Newnes, Murphy JJA and Hall J).  Newnes JA (Hall J concurring) held that it would be quite artificial to view the applicant's costs of the Apricot Street upgrade in isolation.  The works had been undertaken in the context of the obligation imposed on the owners of lots in the development to contribute to the cost of upgrading Apricot Street and another road, Berkshire Road.  The contributions of each of the developers had been adjusted following the applicant's successful request to carry out the upgrade of Apricot Street itself.  It had suited the applicant that the Apricot Street upgrade be completed without delay.  The applicant's contribution to the upgrade of Berkshire Road had been decreased and the contributions of lot owners, including the respondent, to the Berkshire Road upgrade had been increased by a corresponding amount. 

5. Newnes JA concluded that the applicant had not borne the whole of the cost of the Apricot Street upgrade and the payment by the respondent of its contribution for infrastructure costs constituted a contribution to the cost of the Apricot Street upgrade for the purposes of s 159 of the Act[1]. Murphy JA reached a like conclusion, holding that the words "contribute to" in s 159(1) encompass more than direct cash payments to the original subdivider[2]. 

   [1]Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195 at [66].

   [2]Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195 at [120].

6. Newnes JA (Murphy JA and Hall J agreeing) considered that water and sewer mains pipes installed by the applicant in conformity with a requirement of the Water Corporation had not been provided in connection with the road and were accordingly not within the statutory claim[3]. 

   [3]Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195 at [77].

7. The applicant seeks special leave to appeal from the orders of the Court of Appeal, contending that the Court erred in its interpretation of s 159 of the Act. Contrary to the applicant's submission, the decision of the Court of Appeal does not raise a question of general importance having significance to legislative schemes in other States. In issue is the interpretation of a provision of Western Australian planning legislation. There is no question suitable for the grant of special leave and the interests of the administration of justice do not favour the grant.

8. On 20 March 2012 French CJ made orders reinstating the application and directing that the costs of that application be the respondent's costs in any event.  

9. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs. 

J.D. Heydon
20 June 2012 V.M. Bell