Everswell Pty Ltd v Beeliar Management Pty Ltd as trustee for Beeliar Development Trust [No 2] - [2024] WASC 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   EVERSWELL PTY LTD -v- BEELIAR MANAGEMENT PTY LTD AS TRUSTEE FOR BEELIAR DEVELOPMENT TRUST [No 2] [2024] WASC 262
CORAM:   COBBY J
HEARD:   17 APRIL 2024
DELIVERED          :   22 JULY 2024
FILE NO/S:   CIV 1909 of 2021
BETWEEN:   EVERSWELL PTY LTD
Plaintiff
AND
BEELIAR MANAGEMENT PTY LTD AS TRUSTEE FOR BEELIAR DEVELOPMENT TRUST (ACN 619 617 220)
First Defendant
COCKBURN CEMENT LTD (ACN 008 673 470)
Second Defendant

Catchwords:

Statutory construction - Claim for contribution to costs of constructing road in subdivision pursuant to s 159 of the Planning and Development Act 2005 - Meaning of 'access' - Identification of 'later subdivider' - Extent of later subdivider's obligation to contribute to costs of road

Legislation:

Planning and Development Act 2005 (WA) s 4, s 143, s 150, 159, s 161
Town Planning and Development Act 1928 (WA), s 28A

Result:

Plaintiff's claim against first defendant dismissed
Judgment for plaintiff against second defendant

Category: B

Representation:

Counsel:

Plaintiff	:	K de Kerloy & E L Madden
First Defendant	:	P G McGowan & L E Rowley
Second Defendant	:	Mr K M Pettit SC

Solicitors:

Plaintiff	:	Hale Legal
First Defendant	:	Rowley Legal
Second Defendant	:	Minter Ellison

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

Debeaux v Bellis (1989) 9 MVR 351
Graham v Western Australian Planning Commission [2014] WASCA 234; (2014) 206 LGERA 156
Owen v O'Connor [1964] NSWR 1312
Ryan v Nominal Defendant [2005] NSWCA 59, (2005) 62 NSWLR 192
Stream Focus Pty Ltd v City of Armadale [2018] WASCA 196
Walsh v Ervin [1952] VLR 361

COBBY J:

The plaintiff claims one half of the costs of construction of two roads from the defendants in the alternative pursuant to s 159 of the Planning and Development Act 2005 (WA) (the Act), on the basis that one of the defendants is the later subdivider of land which adjoins and has access to those roads.
Section 159(1) of the Act provides:
(1)Where -
(a)a person (in this section called the later subdivider) has subdivided land in which -
(i)a lot or lots has or have a common boundary with; or
(ii)a road joins,
an existing road to which there is access from the subdivided land; and
(b)a person (in this section called the original subdivider) who previously subdivided land that also has a common boundary with that existing road, in connection with that subdivision, contributed to or bore solely the cost of providing or upgrading the existing road; and
(c)the later subdivider did not contribute to that cost,
the original subdivider may, in accordance with this Division, recover from the later subdivider a sum representing one‑half of so much of the reasonable cost as was borne by the original subdivider of providing or upgrading the part of the existing road which has a common boundary with the lot or lots, or is joined by a subdivisional road, as referred to in paragraph (a).
In February 1986, the second defendant acquired lot 2 on diagram 15056 (Lot 2), being the whole of the land comprised in certificate of title volume 1722 folio 866.
In 2016, the plaintiff constructed two roads, Delphinium Way and Astelia Road, in the course of subdividing certain land in Beeliar. Delphinium Way runs north to south, and Astelia Road east to west. The two roads intersect at a corner where the northern end of Delphinum Way meets the western end of Astelia Road.
A portion of the eastern boundary of Lot 2 was common to a section of Delphinium Way and Astelia Road following the construction of those roads.
The portion of Delphinium Way relevant for present purposes was dedicated as a road upon approval of Deposited Plan 410510 on 17 January 2017 by the Western Australia Planning Commission (the WAPC).[1] Astelia Road was dedicated as a road upon approval of Deposited Plan 410155 by the WAPC on 19 June 2017. A copy of a portion of Deposited Plan 410155, showing the location of the two roads and their relationship to the eastern boundary of Lot 2, is attached to these reasons.
[1] See s 168(1) and (4)(b), Planning and Development Act 2005 (WA).
On 14 December 2017, the second defendant subdivided Lot 2 into Lots 81 and 82 on Deposited Plan 413024 with the approval of the WAPC. A copy of Deposited Plan 413024, showing Lots 81 and 82 relative to Delphinium Way, is attached to these reasons.
Following the subdivision of Lot 2, Lots 81 and 82 each had a common boundary with Delphinium Way.
Lot 81 also had a common boundary with that portion of Astelia Road which comprised the corner junction of Astelia Road and Delphinium Way. It is common ground that boundary was 15 m wide, and that the Delphinium Way road reserve was and is also 15 m wide.
At the time the second defendant submitted its application for subdivision of Lot 2, it advised the WAPC that what became Lot 81 would be on‑sold for future development in accordance with a local structure plan for the area then being considered by the WAPC, and requested that the WAPC defer imposing conditions on the proposed subdivision until a further subdivision of what became Lot 81 into residential lots, as set out in the local structure plan, was undertaken.
At trial, the second defendant contended that the creation of Lot 81 involved a 'superlot' subdivision. As that term was (and apparently is) used in the WAPC's development control policy, a superlot is a large subdivided lot, comprising at least 20 ha, intended to be further subdivided at a later date.
By letter dated 8 September 2017, the WAPC essentially acceded to the second defendant's request, the only condition imposed on approval of the proposed subdivision being that the second defendant make arrangements for the provision of electricity easements to the proposed lots to the specification of Western Power and otherwise to the satisfaction of the WAPC.
The second defendant transferred Lot 81 to the first defendant on 22 December 2017.
On 7 June 2019, the first defendant subdivided Lot 81 into Lots 133, 134, 135, 136, 137 and 9000 with the approval of the WAPC. A copy of a portion of Deposited Plan 410155, showing the location of those lots relative to Delphinium Way, is attached to these reasons.
In granting that approval, the WAPC imposed a condition that a local development plan be prepared for Lots 133 to 137, to the WAPC's satisfaction, on the bases (amongst others) that 'dwellings should provide articulation and pedestrian access points to both street frontages', and vehicular access to those lots 'should only be from Delphinium Way'.
Each of Lots 133, 134, 135 and 9000 has a common boundary with Delphinium Way.
Although it might be said that Lot 81, and subsequently Lots 136 and 137, shared a common boundary with Delphinium Way alone, the parties agreed that Lot 81 shared a common boundary with Astelia Road in part and that, following the first defendant's subdivision of Lot 81 in 2019, Lots 136 and 137 should be taken to share a common boundary with Astelia Road. I have accepted that approach, it being open on the facts.
The total area of Astelia Road is 3,184 sqm, but the area of the portion of Astelia Road delineated by the width of the Delphinium Way road reserve and the common boundary of what was part of Lot 81, and is now Lots 136 and 137, is 225 sqm.
The plaintiff's claim raises two issues for determination:
(a)what is the meaning of the phrase 'an existing road to which there is access from the subdivided land' in the closing words of s 159(1)(a); and
(b)what is the meaning of the phrase 'the part of the existing road which has a common boundary with the lot or lots' in the chaussette to s 159(1), the plaintiff contending that the later subdivider is liable to pay one half of the cost of providing the whole of the length of Astelia Road, on the basis Lot 81 (and subsequently Lots 136 and 137) abutted the western end of that road.
Section 161 of the Act provides that land is subdivided for the purposes of s 159 when the WAPC approves the diagram or plan of survey relating to the subdivision.
The second defendant is therefore the later subdivider for the purposes of s 159(1) unless Lot 81 did not have 'access' to Delphinium Way or Asteria Road as at 14 December 2017, when the WAPC approved the second defendant's subdivision of Lot 2, notwithstanding that Lot 81 had common boundaries with Delphinium Way and Astelia Road.
In Stream Focus Pty Ltd v City of Armadale,[2] the Court of Appeal summarised the process of subdivision under the Act as follows:
In Western Australia, there are three stages to the creation of new lots, which new lots can be the subject of dealings without further approval from the Commission.
At the first stage, the Commission may give its approval to the subdivision of lots 'subject to conditions which are to be carried out before the approval becomes effective'. The Commission ordinarily does so by endorsing its approval on a plan of subdivision subject to conditions specified in a written approval. Subdivisional conditions are conditions precedent.
At the second stage, the developer complies with the subdivisional conditions. In doing so, the developer is generally taken to have approval under a relevant planning scheme for the carrying out of necessary works required by the conditions.
At the third stage, the Commission endorses its approval on a diagram or plan of survey. Before doing so the Commission must generally be satisfied that the subdivisional conditions have been complied with, or will be complied with at the time a certificate of title is created or registered. As a matter of practice, the Commission generally relies on the advice of public authorities specified in the conditions confirming that the requirements of the subdivisional conditions have been fulfilled. Once the Commission has endorsed its approval on a diagram or plan of survey, the Registrar of Titles may create or register a new title for the new lots.
A common form of subdivisional condition requires that the developer construct and drain roads connecting the new lots to the local road system. A developer may comply with such a condition by carrying out the construction and drainage 'at his or her own expense'. If it does so, the developer must make a payment of either 1.5% or 3% of the estimated cost of the construction and drainage of the road. This is to cover the reasonable costs of the local government in supervising construction and drainage. Alternatively, the developer may arrange for the local government to carry out the work on behalf of the developer, and at the cost and expense of the developer.
The local government may also require the developer to employ a consulting engineer and clerk of works to design and supervise the construction and drainage.
The Commission is authorised to publish minimum standards of construction with respect to roads to be constructed on a proposed subdivision. No such standards have been published.
Roads shown on a diagram or plan of survey deposited with the Western Australian Land Information Authority (Landgate) are dedicated as roads when the new certificates of title have been registered. From that time, the local government within the district in which the dedicated roads are situated has the care, control and management of the roads. (citations omitted)
[2] Stream Focus Pty Ltd v City of Armadale [2018] WASCA 196 [6] ‑ [13].
The plaintiff and the second defendant contend that, in the context of that process, 'access' in s 159(1) should be understood to mean 'access approved by the WAPC', such that (in essence) there is no access to an existing road for the purposes of the section where the WAPC has not approved a subdivision providing for vehicular access from the proposed lots to the existing road.
The second defendant therefore emphasises that the WAPC did not consider any question of access to Delphinium Way or Astelia Road from Lot 81 in approving the subdivision of Lot 2, the second defendant having expressly requested that question be deferred when seeking subdivisional approval in respect of the creation of Lots 81 and 82.
The first defendant contends that 'access' bears its ordinary meaning, so that there is access from a lot to an existing road whenever the lot and the road share a common boundary. In support of that construction, the first defendant contends that the words 'an existing road to which there is access from the subdivided land' in s 159(1) are otiose, since there will always be access to the road in the relevant sense from an adjoining lot.
The Act does not define the word 'access'. It must therefore be given its ordinary and natural meaning, having regard to the context in which it appears. As the word 'access' also had an established meaning at common law in connection with roads, that legal meaning should also be taken into account in construing s 159.[3]
[3] Graham v Western Australian Planning Commission [2014] WASCA 234; (2014) 206 LGERA 156 [43].
The ordinary meaning of 'access', where used as a noun, is defined by the Macquarie Dictionary to mean 'way, means, or opportunity of approach or entry'.
At common law, a landowner possessed a private property right of access as between his land and an adjoining highway,[4] described as 'the right (subject to any statutory interference therewith) to free and uninterrupted access to the highway from any point on his land contiguous with the highway, and from the highway to any point of his land contiguous therewith'.[5]
[4] Owen v O'Connor [1964] NSWR 1312, 1330.
[5] Walsh v Ervin [1952] VLR 361, 362.
The concept of access also played an important part in determining whether an area comprised a road or was otherwise open to the public, which came to be incorporated in road traffic legislation.[6] In Ryan v Nominal Defendant,[7] Santow JA said:
[6] See, for example, s 73, Road Traffic Act 1974 (WA) and Debeaux v Bellis (1989) 9 MVR 351, 353 ‑ 354.
[7] Ryan v Nominal Defendant[2005] NSWCA 59, (2005) 62 NSWLR 192 [77] ‑ [81].
The point was made as long ago as 1931 by Lord Clyde in the leading case of Harrison v Hill. There the High Court of Justiciary considered a stated case asking whether a private road connecting the farmhouse to the public highway was a 'road to which the public has access' so as to constitute a road for the purposes of the Road Traffic Act 1930 (UK). There was no gate or obstacle impeding access or any intimation that the road was not open to the public. The appellant had been convicted of driving on a road while disqualified from holding a licence. His argument was that his conviction was unsustainable because those members of the public who used the road used it not qua members of the public but qua licensees or trespassers. The Sheriff‑Substitute had found that members of the public having no business at the farm frequently walked upon it.
The Lord Justice-General, Lord Clyde held (at 600):
'I think that, when the statute speaks of "the public" in this connection, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways.
I think also that, when the statute speaks of "the public" having "access" to the road, what is meant is neither (at one extreme) that the public has a positive right of its own to access, nor (at the other extreme) that there exists no physical obstruction, of greater or less impenetrability, against physical access by the public; but that the public actually and legally enjoys access to it. It is, I think a certain state of use or possession that is pointed to. There must be, as a matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed - that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs. I include in permission or allowance the state of matters known in right‑of‑way cases as the tolerance of a proprietor. The statute cannot be supposed to have intended by public "access" such unlawful access as may be had by members of the public who trespass on the property of either individuals or corporations.
In arriving at these conclusions I am partly influenced by the broad consideration that, as the statute is intended for the protection of the public, it is natural to suppose that the statutory traffic regulation should apply to any road on which the public may be expected to be found. Hence the inclusion of such private roads as the public (generally) is, as a matter of fact, allowed to use, and the exclusion of those which the public (generally) cannot lawfully use at all.' (emphasis added)
In this conclusion he was joined by Lord Sands, who added (at 601):
'In my view access means, not right of access, but ingress in fact without any physical hindrance and without any wilful intrusion. In one view it is a technical trespass for any person to put a foot upon an owner's land without the owner's permission. But, as is a matter of common knowledge, there are many roads upon which members of the public enter without any sense of wilful intrusion. In my view, any road may be regarded as a road to which the public have access upon which members of the public are to be found who have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied.'
The decision in Harrison v Hill was followed in England by Lord Caldecote CJ (with whom Hawke J and Humphreys J agreed) in Bugge v Taylor [1941] 1 KB 198, in a case stated by the Surrey Justices asking whether the forecourt of a hotel was a 'road to which the public has access'. It is evident that their Lordships in Harrison and in Bugge respectively considered that at the point where members of the public wilfully render a place open to them by defying the owner's assertion, consistently maintained, of his private rights of property, it should not be open to them to say that the place was one to which the public have access. The public does not have access; it has taken access. Thus public access is not a characteristic of the place at the relevant time nor the product of a de facto tolerance by the owner.
This reasoning is applicable to the question of openness to the public. Despite dealing with a different statutory formulation, Harrison v Hill and Bugge v Taylor are particularly relevant as they were referred to approvingly in the leading Australian case on this area; Schubert v Lee. The High Court described the United Kingdom provision as 'not dissimilar'. Indeed it is evident from the comments of their Lordships in Harrison that the concept of 'access' comprehends issues which overlap the two concepts of openness and use (themselves interrelated) employed by the New South Wales statute.
At common law, 'access' to a road therefore generally referred to the entry upon and traverse of an area with the express or implicit permission of the owner of that area and without having to overcome a physical obstruction, such as a fence, to doing so.
Turning to the legislative history of s 159, the section is the successor to s 28A of the former Town Planning and Development Act 1928 (WA). Section 28A was introduced in 1961 to deal with the perceived inequity of a subdivider of land being solely liable for the whole of the costs of road construction in order to carry out the subdivision, where a subsequent subdivider of land enjoyed the benefit of that road.[8]
[8] Western Australia, Government Gazette (2 November 1961) 2371.
As originally enacted, s 28A(1) referred to subdivided land which 'front[ted] or abut[ted]' the relevant road. Amendments to s 28A made in 1982 inserted reference to the lot having a 'common boundary' with, as opposed to 'fronting or abutting', the road. Immediately prior to the commencement of the Act, s 28A(1) provided:
Where after the coming into operation of section 16 of the Town Planning and Development Amendment Act 1982 (in this section referred to as 'the amending Act') -
(a)a person (in this section called 'the later subdivider') having after that coming into operation subdivided land -
(i)a lot or lots of that subdivision has or have a common boundary with; or
(ii)a road of that subdivision (in this subsection called 'a subdivisional road') joins,
an existing road;
(b)a person (in this section called 'the original subdivider') who previously subdivided land that also has a common boundary with that existing road, in connection with that subdivision, contributed to or bore solely the cost of providing the existing road; and
(c)the later subdivider did not contribute to that cost,
the original subdivider may, in accordance with this section, recover from the later subdivider a sum representing one‑half of so much of the cost as was borne by the original subdivider of providing the part of the existing road which has a common boundary with the lot or lots, or is joined by a subdivisional road, referred to in paragraph (a).

As can be seen, no reference was made in the former s 28A to there being access to the existing road from the subdivided land, the section referring only to the existence of a common boundary between the lot and the road.
The Act was introduced to consolidate the then existing planning legislation, including the Town Planning and Development Act.[9]
[9] Explanatory Memorandum, Planning and Development Bill 2005 (WA) 1.
The existing s 28A was substantially re‑enacted in s 159 of the Act, with the earlier section being modified to include reference to the costs of upgrading a road and the requirement that there be 'access' from the subdivided land. The explanatory memorandum for the Act does not explain the inclusion of the reference to access, although I note that the Town Planning and Development Act does not appear to have contained any provision to similar effect to s 150 of the Act.
In that regard, the Act makes clear that the WAPC has power to prohibit access to an existing road in the course of approving a subdivision. Section 143(1) of the Act provides that the WAPC may, after considering any objections or recommendations contained in a memorandum forwarded to the WAPC under s 142 regarding a subdivision, either:
(a)approve the plan of subdivision; or
(b)refuse to do so; or
(c)approve the plan of subdivision and require the applicant for approval to comply with such conditions as the WAPC thinks fit before the diagram or plan of survey will be endorsed with the approval of the WAPC.
Section 150(1) of the Act provides, without limiting s 143, that the WAPC may impose a condition under s 143 that 'access to and from a portion of land shown on a plan or diagram of survey relating to the subdivision to a road abutting the portion of land is to be restricted or prohibited as set out in the condition and in accordance with the regulations'.
A landowner will consequently not have 'access' from a lot to an existing road for the purposes of s 159(1) where the WAPC has imposed a condition pursuant to s 143 prohibiting access from that lot to the road.
In my view, the common law right of access held by an owner of land adjoining a public road is implicitly recognised in s 143 and s 150 of the Act, and the existence of those sections is contrary to the plaintiff's and second defendant's proposed construction of s 159.
It would be unnecessary for the Act to provide express power to the WAPC to prohibit access to an existing road, as s 150 makes clear, if access to the road required the separate approval of the WAPC. In my view, it is implicit in s 150 that there will be access from a lot with a common boundary with a road to that road unless the WAPC imposes a condition to the contrary.
If that view is correct, then the words 'an existing road to which there is access from the subdivided land' in s 159(1) have operative effect, because the statutory conditions for the operation of s 159(1)(a)(i) are that there be a later subdivision creating a lot or lots with a common boundary with the existing road, to which the later subdivider did not make any contribution to the costs thereof, and the WAPC must not have prohibited access to that road.
In that way, s 143, s 150 and s 159, read together, exempt the owner of a lot which has a common boundary with an existing road from liability to contribute to the costs of construction or upgrading of that road pursuant to s 159(1)(a)(i) where the WAPC has imposed a condition prohibiting access to the road from that lot. That would appear to be a just result, since in those circumstances the road does not enhance the amenity of the subdivided lot, and consistent with the legislative purpose of s 159, which (as with the former s 28A) is to provide a statutory form of contribution to the costs of road construction in subdivisions as between developers.
The remaining question is whether the later subdivider's obligation to contribute arises when those conditions are met, or whether the WAPC must also approve access from the subdivided lot to the existing road, in the sense of giving active consideration to that issue.
Section 159 is remedial legislation, in that it permits the original subdivider who bore the cost of constructing or upgrading the existing road to recover part of the costs of doing so from the later subdivider, when the original subdivider would otherwise be unable to do so. A requirement that the WAPC also approve access to the existing road from the later subdivided lots, so that the statutory right to contribution would not arise where, as here, the later subdivider requests the WAPC not consider the question, is not supported by the text of the Act.
Further, that construction would permit the later subdivider to take steps potentially delaying the original subdivider's right to receive the contribution to costs for which the section provides and, in my view, would therefore be inconsistent with the purpose of the section.
While it might be argued that approach results in the obligation to contribute imposed by s 159(1)(a)(i) arising in circumstances where the later subdivider may not have maximised the potential return from the later subdivision, that is a matter within the control of the later subdivider.
In my view, there is therefore no reason to limit the ordinary meaning of the word 'access' in the manner suggested by the plaintiff and the second defendant. Although it is likely in the ordinary course of considering proposals for subdivision that the WAPC will consider the question of road access from the proposed lots to existing roads, I consider that the Act does not impose a condition that the WAPC approve access from a lot created by a later subdivision to an existing road in order for the original subdivider to be able to successfully make a claim pursuant to s 159(1)(a)(i), although no claim will be open when the WAPC imposes a condition prohibiting access from the lot.
I note for completeness that the plaintiff submitted, in the event that I did not accept its construction of the section, that there was no access from Lot 81 to the two roads because a steel post and chain wire fence, which prevented physical access to the roads, was present on Lot 2 and subsequently Lot 81 from at least 2012 until 2018.
It was, however, agreed between the parties that the second defendant and subsequently the first defendant controlled the fence.
I find that, in those circumstances, the presence of the fence does not impact upon the question whether the second defendant had access to Delphinium Way or Astelia Road following the creation of Lot 81, because it was always open to the second defendant to remove the fence if it wished to do so.
For those reasons, I find that the second defendant was the later subdivider within the meaning of s 159(1)(a)(i) for the purposes of the plaintiff's claims, with the consequence that the plaintiff's claim against the first defendant fails.
Turning to the second issue raised by the plaintiff's claim, Lot 81 adjoined the intersection of Delphinium Way and Astelia Road. The plaintiff essentially contends that the reasonable costs of providing Astelia Road payable by the second defendant comprise the costs of constructing the whole of the length of that road, there being no later subdivider in relation to the land to the north and south of Astelia Road.
Section 159(1) provides that the amount recoverable from the later subdivider is the sum 'representing one‑half of the reasonable cost as was borne by the original subdivider of providing ... the part of the existing road which has a common boundary with the lot or lots ... as referred to in paragraph (a)'. (emphasis added)
The plaintiff submits that, as Astelia Road abuts that portion of Lot 81 now comprised in Lots 136 and 137, the 'part' of Astelia Road which has a common boundary with that land is the whole of the length of the road.
In my view, that construction of the section should not be accepted. The reference to 'the part' of the existing road in s 159(1) indicates that the contribution to be made by the later subdivider is to be proportionate to the area of the road which adjoins the later subdivider's lot or lots. It would, in my view, be contrary to the legislative intention that the costs of roads in subdivisions be shared equitably between subdividers if, because a lot adjoins the endpoint of a road, the owner of that lot is responsible for one half of the costs of constructing the entire road, at least where the original subdivider has subdivided the lots along the length of the road.
Rather, the extent of the later subdivider's contribution is, in my view, limited to one half of the area of the road delineated by the boundary of the later subdivider's lot or lots with the existing road, and the boundaries of the subdivided lots created by the original subdivider which also adjoin that road.
That question is, in my view, one of fact, to be determined in the particular circumstances of the case, and having regard to the boundaries of the lots adjoining the road in question. For example, where the lots are located on opposite sides of the existing road, the area of 'the part' of the road in respect of which the later subdivider will be required to contribute will be delineated by the width of the common boundary and, because the obligation is to pay one half of the cost, the width of the existing road, including any road reserve.
In the present case, were it not for the parties' agreement that Lot 2 adjoined Astelia Road, it might be said that lot had a common boundary with Delphinium Way, such that the part of the road with which Lot 81 had a common boundary was the area delineated by the width of Astelia Road where it adjoined Lot 81 and that of Delphinium Way, being 225 sqm.
Given the parties' agreement to the contrary, the question is whether the part of Astelia Road which shared a common boundary with the 15 m wide portion of Lot 81 in question was greater than the width of Delphinium Way.
As can be seen from Deposited Plan 410155, the corner of Delphinium Way and Astelia Road is bounded by what was originally Lot 2, and Lots 9011 and 553, created by the plaintiff in the course of the original subdivision.
The boundary between Lot 9011 and Astelia Road is 25 m wide. The corner of Lot 553 is truncated at a point commencing 21.016 m from the boundary of Lot 81, although Astelia Road also extended to a point 25 m from the common boundary of that road and Lot 81 on the boundary of Lot 553.
However, considering the locations and boundaries of the three lots, on balance I find that the part of Astelia Road which had a common boundary with Lot 81 was the area bounded by the width of the two roads, being 225 sqm, rather than the area bounded by the width of Astelia Road and the length of the boundary of Lot 9011.
The parties agreed that the reasonable costs of constructing the relevant portion of Delphinium Way were $568,061.75, and that the pro rata cost of constructing the 225 sqm area of Astelia Road I have found to be the part of that road which had a common boundary with Lot 81 was $54,873, for a total of $622,934.75.
The second defendant is therefore liable to pay one half of that amount as the later subdivider of Lot 81, being $311,467.38, to the plaintiff.
Section 160 of the Act provides that an amount payable under s 159 may be recovered by the original subdivider as a debt due by the later subdivider. On that basis, I consider that interest is prima facie payable by the second defendant on that amount calculated from 15 December 2017, but I propose to hear from the parties as to both that issue and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VR
Associate to the Hon Justice Cobby
22 JULY 2024