Intrepid Bay Pty Ltd v Metropolitan Redevelopment Authority - [2025] WASC 192

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   INTREPID BAY PTY LTD -v- METROPOLITAN REDEVELOPMENT AUTHORITY [2025] WASC 192
CORAM:   HOWARD J
HEARD:   7 MAY 2025
DELIVERED          :   22 MAY 2025
FILE NO/S:   CIV 2015 of 2024
BETWEEN:   INTREPID BAY PTY LTD
First Plaintiff
WILLBURY HOLDINGS PTY LTD
Second Plaintiff
BUSHLAND NOMINEES PTY LTD
Third Plaintiff
GAZEBO MANAGEMENT PTY LTD
Fourth Plaintiff
AND
METROPOLITAN REDEVELOPMENT AUTHORITY
Defendant

Catchwords:

Planning and development - Application for declaration that a review under the Armadale Redevelopment Scheme 2 was valid - Construction of the Scheme - Application dismissed

Legislation:

Metropolitan Redevelopment Authority Act 2001 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr J Skinner
Second Plaintiff	:	Mr J Skinner
Third Plaintiff	:	Mr J Skinner
Fourth Plaintiff	:	Mr J Skinner
Defendant	:	Mr I Repper and Ms B Loftus

Solicitors:

First Plaintiff	:	Thomson Geer - Perth
Second Plaintiff	:	Thomson Geer - Perth
Third Plaintiff	:	Thomson Geer - Perth
Fourth Plaintiff	:	Thomson Geer - Perth
Defendant	:	State Solicitor's Office

Cases referred to in decision(s):

Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
City of Gosnells v Reid [2024] WASCA 155

HOWARD J:

The plaintiffs are owners of land within the Armadale Redevelopment Scheme 2 (Scheme).[1] The Scheme was made under Pt 5 of the Metropolitan Redevelopment Authority Act 2001 (WA) (MRA Act).
[1] The Scheme is 'JCWS-1' to the affidavit of Mr J C W Skinner, made and filed 29 August 2024 (Skinner affidavit).
The defendant Authority is the statutory body corporate established by s 4(1) of the MRA Act and has, and had, statutory responsibility for the preparation and implementation of the Scheme.
The Scheme replaced the Armadale Redevelopment Scheme 2004 (Former Scheme), which was repealed in 2017.[2]
[2] The Former Scheme is 'MKR-1' to the affidavit of Mr M K Ryan, made and filed 4 October 2024 (Ryan affidavit).
The defendant Authority, in about July 2021, advertised amendments to the Forrestdale Business Park East Development Contribution Plan - Precincts 7 and 7A;[3] which are within the Scheme.
[3] Skinner affidavit [8]; The DCP is 'MKR-9' at page 249 of the Ryan affidavit.
It was common ground that the plan advertised by the defendant Authority in about July 2021 was the same, or in materially the same terms, as the plan it adopted (DCP).[4] For the purposes of this application, it is unnecessary to distinguish between the advertised plan and the DCP.
[4] ts 25.
The plaintiffs' land was within the area covered by the DCP.[5]
[5] Skinner affidavit [4].
It was common ground that under the DCP there would be a cost contribution payable by the plaintiffs of $32.76 per square metre.[6]
[6] See Appendix 2 'Cost Apportionment Schedule' to the DCP at 'MKR-9' at page 264 of the Ryan affidavit.
Pursuant to cl 7.11 of the DCP (as quoted below), the plaintiffs objected to the proposed amount of the cost contribution in the DCP.[7]
[7] Skinner affidavit [8], [9].
The plaintiffs and defendant Authority agreed that Mr Len Kosova was an appropriately qualified person to conduct a review of the cost contribution within cl 7.11(1) of the Scheme.
Mr Kosova was appointed to conduct a 'review' under cl 7.11(1) of the Scheme by the plaintiffs (after he had been nominated to them by the defendant Authority[8]).
[8] ts 11, 14.
Pursuant to that appointment, Mr Kosova prepared:
1.an initial review document on about 16 March 2023 (March 2023 Report);[9] and
2.a supplementary review document on about 20 October 2023 (October 2023 Supplement).[10]
From here I refer to these two documents together as the Review.
[9] The March 2023 Report is 'JCWS-4' at page 175 of the Skinner affidavit.
[10] The October 2023 Supplement is 'JCWS-5' at page 210 of the Skinner affidavit.
Importantly, it was common ground between the parties that:
1.at all times there was a known dispute between them as to what could be within the scope of the review conducted by Mr Kosova;[11] and
2.by the defendant Authority agreeing that Mr Kosova was an appropriately qualified person, it was not agreeing with the plaintiffs as to what could be within the proper scope of the review.[12]
[11] ts 6, 14, 16.
[12] ts 14.
In the Review, Mr Kosova calculated that the cost contribution payable by the plaintiffs was $6.33 per square metre.[13]
[13] See the October 2023 Supplement at 'JCWS-5' at page 216 of the Skinner affidavit: Table 3, row 12 column F.
Following Mr Kosova's Review, the parties remained in dispute as to what the plaintiffs' cost contribution should be. That dispute, for present purposes, effectively turned on what could be considered within the proper scope of the Review.
The parties entered into two agreements to resolve that dispute, namely:
1.a deed between the first to third plaintiffs and the defendant Authority;[14] and
2.a deed between the fourth plaintiff and the defendant Authority.[15]
[14] That deed is 'JCWS-7' at page 220 of the Skinner affidavit.
[15] That deed is 'JCWS-8' at page 244 of the Skinner affidavit.
Pursuant to those agreements, the plaintiffs commenced this action and seek the following declaration:
a declaration that a review carried out by Mr Len Kosova (comprised in reports dated 16 March 2023 and 20 October 2023) of the amount of cost contributions payable by the Plaintiffs under the Armadale Redevelopment Scheme 2 (Scheme) and the Forrestdale Business Park East Development Contribution Plan, constituted a valid review of the amount of the cost contributions for the purposes of clause 7.11 of the Scheme.[16]
[16] Originating Summons filed 29 August 2024.
The defendant Authority seeks, in effect, a declaration to the opposite effect.[17]
[17] ts 76.
The application turns on what a review in cl 7.11 of the Scheme can take into account, and whether the Review was within cl 7.11.

The evidence

The evidence on the application was by affidavits of:
1.the plaintiffs' solicitor, Julian Charles Wentworth Skinner, made and filed 29 August 2024 read by the plaintiffs (Skinner affidavit);
2.an executive officer of the defendant Authority, Matthew Kieran Ryan, made and filed 4 October 2024 read by the defendant Authority (Ryan affidavit);
3.one of the defendant Authority's solicitors, Belinda Jane Loftus, made and filed 4 October 2024 read by the defendant Authority (first Loftus affidavit); and
4.Ms Loftus made and filed 31 January 2025 read by the defendant Authority (second Loftus affidavit).

The DCP and the Scheme

In the Introduction to chapter 7 of the Scheme, the defendant Authority states, relevantly:
In most instances the Authority will provide, or make plans to provide, the majority of new infrastructure within each project area prior to private land owners undertaking redevelopment of their land. Accordingly the Authority will seek to recoup costs associated with infrastructure provision from land owners who benefit from this work, by requiring Development Contributions.
Chapter 7 sets out the provisions for the preparation and application of Development Contribution Plans, which set out the works and contribution system for an area. These plans are prepared to assist in the timely, equitable funding and provision of physical and social infrastructure in the Authority’s Scheme Area.
Land owner Development Contributions are usually made by way of making payments, or, where appropriately guided by the applicable development contribution plan, offset by undertaking works on behalf of the Authority or ceding land to the value of the contribution. The requirement to provide a contribution is usually triggered by developing or subdividing land.[18]
[18] 'JCWS-1' at page 111 of the Skinner affidavit.
I note here that it was common ground that the 'trigger' for the plaintiffs' liability to pay the cost contribution was the occurrence of an act within cl 7.10(1)(d) of the Scheme - being the subtraction of the relevant land from the Armadale Redevelopment Area.[19]
[19] ts 57.
The Objectives of the Scheme are set out in chapter 2 of the Scheme and are stated to be:
• Sense of Place;
• Economic Wellbeing;
• Urban Efficiency;
• Connectivity;
• Social Inclusion; and
• Environmental Integrity …[20]
[20] 'JCWS-1' at page 28 of the Skinner affidavit.
The establishment of the DCP was described, relevantly, as follows:
To plan and provide for the infrastructure needs of [Forrestdale Business Park East] in a holistic and timely manner, the Authority established a DCP for use in conjunction with the statutory planning framework, including the Scheme, the Forrestdale Project Area Design Guidelines and relevant Development Policies. The DCP apportions costs via contributions from land owners who will benefit from key investment in infrastructure and services required to activate landholdings for development in accordance with the Forrestdale Business Park (East) Structure Plan (the Structure Plan).[21]
[21] 'MKR-9' at page 254 of the Ryan affidavit.
The Purpose of the DCP was stated as follows:
• promote the efficient and effective provision of public infrastructure and facilities to meet the demands arising from new growth and development;
• ensure that Development Contributions are necessary and relevant to the development to be permitted and are charged equitably among those benefitting from the infrastructure and facilities to be provided; and
• ensure consistency and transparency in the system for apportioning, collecting and spending Development Contributions.[22]
[22] 'MKR-9' at page 255 of the Ryan affidavit.
Relevantly to that Purpose, 'Development Contribution' is defined in the DCP as:
… a financial contribution required from an owner towards the Development Costs in a Development Contribution Area, in accordance with a Development Contribution Plan. Liability for a Development Contribution is set out in clause 7.9 [of the Scheme].[23]
[23] Appendix 2 to the Scheme: 'JCWS-1' at page 147 of the Skinner affidavit applied to the DCP by cl 7 in 'MKR-9' at page 262 of the Ryan affidavit.
The Executive Summary of the DCP includes the following:
The DCP has delivered $49,270,141.60 in planning, environmental and infrastructure works with $1,042,394.91 of development costs remaining, based on estimates prepared in July 2021. The DCP has received contributions of $39,302,028.21, resulting in total outstanding contributions of $11,268,348.30. There is an Outstanding Net Developable Area of 343,997m².[24]
[24] 'MKR-9' at page 253 of the Ryan affidavit.
Clause 7.5 in the Scheme under the heading of Estimated Costs provides:
(1)The value of Development Costs shown in a Development Contribution Plan are to be based on amounts expended, but when expenditure has not yet occurred, they are to be based on the best and latest estimated costs available to the Authority.
(2)The Authority is to have such estimated costs independently verified by an appropriately qualified person and must include this verification in the Development Contribution Plan.
(3)Where any cost contribution has been calculated on the basis of an estimated cost, the Authority–
(a) is to adjust the cost contribution of any owner in accordance with the revised estimated costs; and
(b) may accept a cost contribution, based upon estimated costs, as a final cost contribution and enter into an agreement with the owner accordingly.
(4) Where an owner’s cost contribution is adjusted under subclause 3, the Authority, on receiving a request in writing from an owner, is to provide the owner with a copy of estimated costs and the calculation of adjustments.[25]
[25] 'JCWS-1' at page 114 of the Skinner affidavit.
Clause 7.10(1) provides:
An owner of land in a Development Contribution Area is required to make a Development Contribution in accordance with the applicable Development Contribution Plan. An owner's liability to pay the owner's Development Contribution to the Authority arises on the earlier of … .[26]
[26] 'JCWS-1' at page 117 of the Skinner affidavit; and see [26] above as to the occurrence of the trigger.
Clause 7.11 provides as follows:
7.11REVIEW OF COST CONTRIBUTION
(1)If an owner objects to the amount of a cost contribution, the owner may give notice to the Authority requesting a review of the amount of the cost contribution by an appropriate qualified person (‘independent expert’) agreed by the Authority and the owner at the owner’s expense, within 28 days after being informed of the cost contribution.
(2) If, following a review, the valuer’s determination of the value of the cost contribution is still not a figure acceptable to the owner, the value is to be determined:
(a)by any method agreed between the Authority and the owner; or
(b)if the Authority and the owner cannot agree, the owner may apply to the State Administrative Tribunal for a review of the matter under part 14 of the Planning and Development Act 2005.[27] (emphasis in the original)
[27] See 'JSCW-1' at page 118 of the Skinner affidavit.

The Review

As will be seen, Mr Kosova started with the Actual Expenditure brought into the DCP and then deducted from that two items which he considered should not be brought into the DCP on fair and reasonable grounds.
It was common ground between the parties that the 'Actual Expenditure' of $49,270,142 which Mr Kosova started with in his Review;[28]
1.was taken from the DCP;[29] and
2.had actually been expended by the defendant Authority, rather than being some combination of actual and, or, estimated costs.
[28] See table 3 in the October 2023 Supplement at page 216 of the Skinner affidavit, row 1 of Column A.
[29] See Appendix 2 - Cost Apportionment Schedule to the DCP at 'MKR-9' at page 264 of the Ryan affidavit.
Mr Kosova, in his Review:
1.started with the Actual Expenditure captured by the DCP of $49,270,142;[30]
2.deducted $4,086,210 from the Actual Expenditure for an 'estimated construction cost saving' on the Ranford Road construction cost;[31]
3.deducted $5,005,350 from the Actual Expenditure for the acquisition of Ranford Road which he considered should not have been paid for the defendant Authority;[32]
4.after those deductions from the Actual Expenditure, calculated a notional or preferred cost of $40,178,582[33] (I have used 'notional' or 'preferred' cost to indicate the figure which Mr Kosova thought should be used in a fair and reasonable calculation);
5.identified contributions already paid by other landowners in the relevant area of $39,302,028 (Paid Contributions);[34] and then deducted the Paid Contributions from the notional or preferred cost which left outstanding contributions of $2,176,789;[35] and
6.divided that last sum by the outstanding net developable area of 343,997m² to arrive at a cost contribution rate of $6.33 per square metre.[36]
[30] Table 3 to the October 2023 Supplement at page 216 of the Skinner affidavit, row 1 of Column A.
[31] Table 3 to the October 2023 Supplement at page 216 of the Skinner affidavit, row 2 of Column B.
[32] Table 3 to the October 2023 Supplement at page 216 of the Skinner affidavit, row 3 of Column D.
[33] Table 3 to the October 2023 Supplement at page 216 of the Skinner affidavit, row 1 of Column F.
[34] Table 3 to the October 2023 Supplement at page 216 of the Skinner affidavit, row 5 of Column F.
[35] Table 3 to the October 2023 Supplement at page 216 of the Skinner affidavit, row 11 of column F.
[36] Table 3 to the October 2023 Supplement at page 216 of the Skinner affidavit, rows 10, 11, 12 of Column F.
Mr Kosova described his (first) deduction of $4,086,210 from the Actual Expenditure in the following way:
1.18From the preceding paragraphs and based on available information regarding estimated and actual costs at the time, I consider that if a competitive open market tender process had been pursued for the Ranford Road project -
a)The total 'unsubsidised' construction cost could have plausibly been reduced from $11,684,810 to $7,900,968 (per paragraph 1.16 earlier), representing a potential saving of $3,783,842; and
b)If the estimated cost of one carriageway ($3,002,368 - paid for by the City's $2.7M contribution and an additional $302,368 of non-DCS funding) were deducted from the assumed (reduced) project cost of $7,900,968 then the 'subsidised' cost for the Ranford Road project could have been $4,898,600 representing a potential saving to the DCS of $4,086,210 (calculated as $11,684,810 - $2,700,000 - $4,898,600).[37] (emphasis in the original)
[37] 'JCWS-5' at pages 213 - 214 of the Skinner affidavit.
It is to be noted that [1.18] quoted above is under a heading in the October 2023 Supplement of: 'Did the DCP costs for the Ranford Road construction project represent fair value for money?'.
Mr Kosova described his (second) deduction of $5,005,350 from the Actual Expenditure in the following way:
2.5In section 3.3, paragraph f) of my [March 2023 Report], I expressed the opinion that the acquisition cost for the Ranford Road regional road reservation ought to have been borne by the City of Armadale and/or the Metropolitan Region Improvement Fund (MIRF) in the amount of $5,005,350.
2.6If the DCS were not charged for the regional road reservation acquisition costs mentioned in the two preceding paragraphs, then I consider the potential saving to the DCS would have ranged from $4,216,507 to $5,005,350.[38] (emphasis in the original)
[38] 'JCWS-5' at page 215 of the Skinner affidavit.
It is to be noted [2.5] and [2.6] quoted above were under the heading in the October 2023 Supplement of: 'Were the DCP Ranford Road land acquisition costs fair and reasonable?'.
It was common ground that the $1,042,394.91 (estimated) referred to by both the DCP's Executive Summary quoted above and in Mr Kosova's Review[39] related principally to the Armadale Road and Alex Wood Drive intersection.[40] That estimate was not the subject of any adjustment by Mr Kosova in the Review and so, for present purposes, may be put to one side.
[39] See Row 6 'Estimated Redevelopment Cost' in Table 3 of the October 2023 Supplement at page 216 of the Skinner affidavit.
[40] ts 62.

The applicable principles of interpretation

The parties agreed that the resolution of the application turns on a proper construction of cl 7.11 of the DCP (and, effectively, whether Mr Kosova could make the two deductions he did from the Actual Expenditure), rather than:
1.the correctness of the conclusions that Mr Kosova reached;[41] or
2.whether Mr Kosova did what he was asked to do.[42]
[41] ts 9.
[42] ts 49.
There was no dispute between the parties that the principles applicable to the interpretation of planning schemes, including the Scheme, are as stated in the Court of Appeal decisions of Australian Unity Property Ltd v City of Busselton[43] and City of Gosnells v Reid.[44]
[43] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 (Buss P, Murphy and Mitchell JJA): Plaintiffs' outline of submissions filed 17 December 2024 [7]; defendant Authority's submissions filed 31 January 2025 [6].
[44] City of Gosnells v Reid [2024] WASCA 155.
I have applied the following principles from those cases, namely:
1.the recognised rules of interpretating a legislative text apply to a planning scheme;[45]
2.primacy is to be given to the language which the legislating body has chosen to use;[46]
3.historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text, and the language actually used in the text of the legislation is the surest guide to legislative intention;[47]
4.a focus on the statutory text facilitates the comprehension of the meaning of legislation by persons whose conduct it regulates;[48]
5.the terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the Scheme applies. [49] While 'uses' is not in issue in this Scheme, the approach, in my view, still has application to the interpretation exercise here;
6.the text is to be read in its context and for its statutory purpose so that the meaning of the planning scheme emerges;[50]
7.legislative purposes are to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions;[51]
8.it is relevant to note that planning schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of a statute;[52] and
9.planning schemes should be construed broadly rather than pedantically and with a sensible practicable approach.[53]
[45] Australian Unity Property Ltd v City of Busselton [77]; City of Gosnells v Reid [147(1)] (Buss P and Vandongen JA).
[46] Australian Unity Property Ltd v City of Busselton [79].
[47] City of Gosnells v Reid [147(2)] (Buss P and Vandongen JA).
[48] Australian Unity Property Ltd v City of Busselton [81].
[49] Australian Unity Property Ltd v City of Busselton [82].
[50] Australian Unity Property Ltd v City of Busselton [83].
[51] Australian Unity Property Ltd v City of Busselton [85].
[52] Australian Unity Property Ltd v City of Busselton [84].
[53] Australian Unity Property Ltd v City of Busselton [84]; City of Gosnells v Reid [147(6)] (Buss P and Vandongen JA).

The parties' contentions

I wish to note that the arguments were presented in a careful and concise manner by both sides and that has greatly assisted in the resolution of the application.
The sharp point of divergence between the plaintiffs and defendant Authority is whether, in conducting the Review, Mr Kosova:
1.could go behind the Actual Expenditure that the DCP had adopted to calculate the contribution costs (as contended for by the plaintiffs); or
2.was limited in the sense that he had to 'accept' or adopt the Actual Expenditure which the DCP started with (as contended for by the defendant Authority).
It is important to note that what is in issue in this application is solely the scope of a review under cl 7.11(1) of the Scheme. The question of whether the plaintiffs have, or may have had, some other right to review a decision or decisions of the defendant Authority[54] is not before the Court on this application.
[54] See, for example, cl 1.11(1) of the Scheme: 'JCWS-1' at page 21 of the Skinner affidavit.
The plaintiffs submit, correctly, that there is no express provision in cl 7.11 or the Scheme which identifies or defines the scope of a review.[55]
[55] Plaintiffs' outline of submissions filed 17 December 2024 [51].
The plaintiffs submit that because there is no express provision identifying or defining the scope of a review under cl 7.11(1), it should be given its widest possible scope and operation. The plaintiffs submit that the construction advanced by the defendant Authority, in effect, reads words of limitation into cl 7.11(1) of the Scheme which simply are not present.
The plaintiffs submit that, approaching the relevant provisions not pedantically, there are at least seven indicators that a review under cl 7.11 of the Scheme is broader than simply 'confirming' the calculation of contribution costs under the provisions of the DCP; and that it extends to the sort of review undertaken by Mr Kosova in his Review.[56] Those indicators are submitted to be:
1.although cl 7.11(1) uses the word 'amount', cl 7.11(2) uses 'value' to indicate that there is a broader scope than simply a dollar amount.[57] That is, the objection is taken to the 'amount', but the subject of the review is 'value';[58]
2.cl 7.11 requires an 'appropriately qualified person' (by cl 7.11(1)) and a 'valuer' (by cl 7.11(2)). Such qualifications would be unnecessary if the reviewer so described was simply performing an arithmetical calculation;[59]
3.cl 7.11(2) provides a further mechanism if the review under cl 7.11 is not acceptable to the landowners. Under cl 7.11(2)(b) the dispute may be resolved, ultimately, in the State Administrative Tribunal which would be, it is submitted, unnecessary if all that is being performed is an arithmetical exercise;[60]
4.apart from a review under cl 7.11, there is no provision or opportunity under the Scheme for an owner to initiate a review of the elements or components of the cost contribution with the consequence that all elements of a cost contribution would be determined entirely by the defendant Authority;[61]
5.the deletion of certain provisions from the Former Scheme (cl 8.10) is, it is submitted, a strong indication that the cl 7.11 review is intended to be broader in scope than under the Former Scheme and not be limited merely to the quantum or calculation of the cost contribution;[62]
6.a review under cl 7.11 which takes into account the inclusion of the components of the costs by the defendant Authority (on fair and reasonable grounds) is consistent with the stated purposes and objectives of the Scheme and the DCP: principally to enable equitable contributions to be collected from benefitting landowners;[63] and
7.provisions allowing for a right of review are generally treated as beneficial provisions and as such should be given an interpretation which, it is submitted, enhances rather than diminishes the scope of the review.[64]
[56] Plaintiffs' outline of submissions filed 17 December 2024 [54].
[57] Plaintiffs' outline of submissions filed 17 December 2024 [55] - [56].
[58] ts 38: Although it is to be noted that 'value' does not appear in cl 7.11(1) of the Scheme.
[59] Plaintiffs' outline of submissions filed 17 December 2024 [57].
[60] Plaintiffs' outline of submissions filed 17 December 2024 [58].
[61] Plaintiffs' outline of submissions filed 17 December 2024 [59].
[62] Plaintiffs' outline of submissions filed 17 December 2024 [60].
[63] Plaintiffs' outline of submissions filed 17 December 2024 [61] - [66].
[64] Plaintiffs' outline of reply submissions filed 26 February 2025 [14].
The defendant Authority submits that:
1.under the Scheme, it is to decide which costs are to be dealt with through a development contribution plan[65] (which was accepted by the plaintiffs);[66]
[65] Defendant Authority's submissions filed 31 January 2025 [32]; ts 56.
[66] ts 28, 29, 33, 78.
2.the calculation of a landowner's cost contribution obligation is a different process from the making or amending of a development contribution plan;[67]
[67] Defendant Authority's submissions filed 31 January 2025 [33].
3.the words in cl 7.11(1) specify a review of 'the amount of the cost contribution,' and not a review of a development contribution plan or a 'Development Cost' or 'Development Contribution';[68]
[68] Defendant Authority's submissions filed 31 January 2025 [34]; see also plaintiffs' outline of submissions filed 17 December 2024 [53].
4.the Scheme does not provide for any right of review of the making or amendment of a development contribution plan;[69]
[69] Defendant Authority's submissions filed 31 January 2025 [24].
5.if cl 7.11(1) did provide for a review of a development contribution plan it would be inconsistent with the framework set out in cll 7.3 to 7.10 of the Scheme;[70]
6.because of cl 7.5(1) a development contribution plan is to be based on amounts expended (or estimated to be expended), so the defendant Authority could not have undertaken by way of amending the DCP under cl 7.8 of the Scheme the sort of review undertaken by Mr Kosova: that is the powers on review would exceed the powers exercised initially;[71]
7.principally, cl 7.11(1) of the Scheme was to allow for a review of the defendant Authority's administration of a development contribution plan;[72]
8.the review of the amount of a cost contribution under cl 7.11(1) is not necessarily limited to arithmetical calculations (although it does include those) because not only dollar amounts may be included in the contribution. The defendant Authority notes, as an example, the calculation of 'Owners Balance Land' in cl 4.2 of the DCP[73] which would require a determination of 'net developable area' and may be complex;[74]
9.a development contribution plan under the Scheme need not result in the calculation of a linear rate per square metre but may instead be based on, for example, the number of residential lots which are yielded;[75] and
10.by way of a further example of potential complexity, a Development Contribution may be ‘paid’ by way of the landowner providing:
(a)infrastructure to the value of development contribution;[76]
(b)land to the value of the development contribution;[77] or
(c)a community facility or other community benefit.[78]
[70] Defendant Authority's submissions filed 31 January 2025 [35].
[71] ts 73 - 76.
[72] ts 53.
[73] 'MKR-9' at page 259 of the Ryan affidavit.
[74] Defendant Authority's submissions filed 31 January 2025 [40]; ts 54.
[75] ts 54.
[76] cl 7.12(1)(b) of the Scheme; 'JCWS-1' at page 118 of the Skinner affidavit; ts 54.
[77] cl 7.12(1)(c) of the Scheme; 'JCWS-1' at page 118 of the Skinner affidavit.
[78] cl 7.12(1)(d) of the Scheme; 'JCWS-1' at page 118 to the Skinner affidavit; Defendant Authority's submissions filed 31 January 2025 [40(b)].
Further, to the submission set out in [47(6)] above, the defendant Authority submits that the Review must be beyond the scope of cl 7.11(1) as cll 7.5 and 7.10 make plain that a development contribution plan must be based on development costs actually expended (or estimates in certain circumstances) and Mr Kosova's Review was based on different costs - which, as above, I describe as notional or preferred costs.[79]
[79] ts 50 - 51.

Consideration of the scope of a Review under cl 7.11(1)

As will be seen, I accept the position of the defendant Authority as to what a review under cl 7.11(1) of the Scheme can include.
In my view, it is apparent that the formulation of a development contribution plan under the Scheme contemplates and provides that the defendant Authority makes the choices as to which development costs are brought into that plan.
As noted above, it was not in dispute that the Scheme allocated that decision to the defendant Authority.
The defendant Authority's choices are made through the steps set out in ss 7.3 - 7.7 of the Scheme.
That is apparent from, for example, cll 7.3(2), 7.3(4)(c), 7.3(4)(g) when read with cl 7.4(1), they provide as follows:
7.3DEVELOPMENT CONTRIBUTION PLANS
…
(2)The Authority may seek expert advice and/or stakeholder input in identifying appropriate Development Costs for the Area as considered appropriate by the Authority.
…
(4)The Development Contribution Plan may specify:
…
(c)the Development Costs from the list in clause 7.4 (the works and dollar value) that are required in the Contribution Area and that will be partly or fully funded by the Contribution Plan;
…
(g)any Development Costs or other associated costs and expenses that will not be charged to owners, including any costs that have received Federal Government funding;
…
…
7.4DEVELOPMENT COSTS
(1)Development Costs that may be included in a Development Contribution Plan may include all costs associated with providing or improving any one or more of the following for the relevant Development Contribution Area:[80]
… (emphasis added)
[80] 'JCWS-1' at pages 112 - 113 of the Skinner affidavit.
The Scheme defines 'Development Costs' as 'the infrastructure and administrative costs as identified in clause 7.4'.[81]
[81] 'JCWS-1' at page 147 of the Skinner affidavit.
That allocation of decision making is significant, in my view, because it provides the starting point from which contributions are then worked out through a development contribution plan. And, it provides the starting point when one assesses the significance of the stated purposes of the DCP that (the defined[82]) Development Contributions are:
1.to be charged equitably amongst those benefitting; and
2.to be apportioned, collected and spent in a way that ensures consistency and transparency.[83]
[82] 'JCWS-1' Appendix 2 of the Scheme at page 147 of the Skinner affidavit applied to the DCP by cl 7 in 'MKR-9' at page 262 of the Ryan affidavit.
[83] 'MKR-9' at page 255 of the Ryan affidavit; as quoted in [24] above.
The use of 'Development Contributions' in the stated purposes is significant. It limits the contributions to those required from a landowner in accordance with a development contribution plan - which can only be prepared after the defendant Authority has decided which costs are to be brought into the plan.
In my view, those purposes are to operate (from the words of the Scheme) from the point after which the defendant Authority has decided which costs are to be brought into the development contribution plan, rather than the purpose of equitable charging being applied to a point in the process before the costs to be brought into the DCP are determined.
Once cll 7.3 and 7.4 (and cl 7.5) have been complied with, the defendant Authority under cl 7.6(1) may resolve to put that plan as a draft development contribution plan for the purpose of public consultation.[84]
[84] 'JCWS-1' at page 114 of the Skinner affidavit.
I consider the provisions of cl 7.5 of the Scheme to be significant in this case. As quoted above, in cl 7.5(1) the value of Development Costs in the DCP are to be amounts actually expended or are to be based on the best and latest estimated costs available.
That significantly tells against the sort of exercise which Mr Kosova conducted in the Review where he, as seen, effectively adjusted the Actual Expenditure (brought into the DCP by the defendant Authority) to reflect his notional or preferred values.
The defendant Authority, following consultation on the draft development contribution plan in cl 7.6, is to:
1.review all written submissions and consider whether modification of the plan is necessary;[85]
2.resolve or adopt the draft with or without modification, or further review it or not proceed with it;[86] and
3.provide notification of its resolution.[87]
[85] cl 7.7(1)(a).
[86] cl 7.7(1)(b).
[87] cl 7.7(1)(c) - (f).
I consider that it is of some significance that the resolution which the defendant Authority is required to make under cl 7.7(b) is not, on the face of the Scheme, subject to an express review under the Scheme. I express no view as to whether there may be some other review available outside of the terms of the Scheme.
I have quoted materially from cl 7.10(1) of the Scheme above. It may be noted that the landowner is obliged to make the Development Contribution in accordance with the applicable development contribution plan; here the DCP.
It is following that obligation imposed by cl 7.10 of the Scheme that one finds the review available under cl 7.11(1).
The placing of the review in cl 7.11(1) immediately after cl 7.10 is textually significant in my view.
Firstly, it strongly suggests to me that it is the obligated 'Development Contribution' amount from cl 7.10(1) which is able to be reviewed.
Secondly, that Development Contribution amount will have been arrived at by a process which starts, effectively, after the defendant Authority has decided which costs should be the subject of a development contribution plan.
Further, in my view, a natural reading of the words in cl 7.11(1) is that the review is of the cost contribution arrived at by the development contribution plan, not a review of the costs brought into the plan by the defendant Authority.
I have considered the indicators submitted by the plaintiffs set out above. I do not consider they lead to an acceptance of the plaintiffs' contention.
I consider that the complexity which may be present in a development contribution plan, and therefore in a review under cl 7.11 of the Scheme, means it will not always be a purely arithmetical calculation.
If that is the case, it would explain what appear to me to be the interchangeable use in cl 7.11 of:
1.'amount' and 'value'; and
2.'appropriate qualified person' and 'valuer'.[88]
[88] And, I note the observations by the Court of Appeal in Australian Unity Property Ltd v City of Busselton as quoted above that planning schemes are not usually drafted by Parliamentary counsel.
Those considerations appear to me to 'meet' the first three indicators advanced by the plaintiffs.
That is especially so if one approaches the question non‑pedantically and with the understanding that the Scheme most likely has not been drafted with the precision of Parliamentary counsel.
The fourth indicator must be accepted as far as it goes. Whether or not there would be an opportunity for an affected landowner to seek judicial review of the defendant Authority's resolution under cl 7.7(1)(b) of the Scheme is a moot point. However, the present question is whether the Scheme provides for a review of the components brought in by the defendant Authority to the development contribution plan.
With respect, to assert that there must be a review as contended for by the plaintiffs is to fall foul of the Court of Appeal's injunction that the interpretation exercise is not to make assumptions about what would be a desirable operation for outcome.
As to the fifth indicator, I will consider that further below.
The sixth indicator advanced by the plaintiffs is said to draw support from cl 7.3(3) of the Scheme, which states that Development Contribution Plans are to be prepared and reviewed in accordance with the following principles:
(a)Need and nexus
(b)Efficiency and certainty
(c)Equity and consistency
(d)Transparency and accountability
(e)Right of consultation and comment.[89]
[89] 'JCWS-1' page 112 of the Skinner affidavit.
Consistently with that, the plaintiffs point to, for example, the exposition of 'equity' in the DCP's principles which states:
The DCP consists of one Development Contribution Area (DCA) within which all landowners with developable land will contribute equitably through payment of a cost contribution represented by a square metre rate.[90] (emphasis added)
[90] 'MKR-9' at page 256 of the Ryan affidavit. See the plaintiffs' submissions filed 17 December 2024 [62], [65].
That sixth indicator seems to me, with respect, to be mostly neutral between the parties' contentions. That is, the defendant Authority's construction would give rise to an equitable charging between landowners, but only of the costs brought into the DCP. And, where the wording of the cl 7.11 review allows an owner to object to a cost contribution which may be different between landowners (having regard to, for example, how a contribution may be paid by cl 7.12(1) of the Scheme) that may be considered to be 'equitable'.
If anything, the use of the defined term 'Development Contribution Plans'[91] in cl 7.3(3) of the Scheme suggests that it is only those costs brought into a Plan by the defendant Authority which are being referred to.
[91] Appendix 2 to the Scheme: 'JCWS-1' at page 147 of the Skinner affidavit applied to the DCP by cl 7 in 'MKR-9' at page 262 of the Ryan affidavit.
As to the seventh indicator, this is, with respect, neutral as between the parties' contentions in my view. For it to support the plaintiffs' contentions, one would have to assume what would be the desirable scope of a review.[92]
[92] cf Australian Unity Property Ltd v City of Busselton [85].

Reviews in other planning instruments

Both parties, to a greater or lesser extent, sought to pray in aid the provisions of other planning instruments.
The plaintiffs relied in their written submissions on certain review provisions of the Former Scheme which had been departed from in the Scheme: see, for example, the fourth and fifth indicators advanced by the plaintiffs.[93]
[93] Plaintiffs' submissions filed 17 December 2024 [59], [60]. See also the provisions of the Former Scheme set out in those submissions at [29] - [39].
The defendant Authority relied to some degree on the State Planning Policy 3.6: Development Contributions for Infrastructure (SPP 3.6).[94]
[94] See the defendant Authority's submissions filed 31 January 2025 [51] - [58].
At the hearing, however, both sides accepted, effectively, that the review provisions under the Former Scheme[95] and SPP 3.6[96] were of limited assistance on this application. I consider that is correct.
[95] The plaintiffs accepted that the Scheme provisions now are very different from those in the Former Scheme: ts 35; see also the defendant Authority at ts 68.
[96] See the plaintiffs' submissions at ts 42 - 46; and the defendant Authority's acceptance that there had been some copying and pasting between SPP 3.6 and the Scheme but other things which were not: ts 69 - 70.
In both the Former Scheme and SPP 3.6, there are similarities and differences in the review provisions adopted across the board. It is not possible here, to derive any meaningful assistance from those other planning instruments.
Primacy must be given to the text of the Scheme used in its context. As the Court of Appeal said (as quoted above), historical considerations and extrinsic materials cannot displace the clear meaning of the text which I consider emerges from the Scheme and the DCP.

Disposition

For the above reasons, I would dismiss the plaintiffs' application and make a declaration as sought by the defendant Authority.
I will hear the parties, as needs be, on the formulation of such a declaration and the costs of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IF
Associate to the Hon Justice Howard
22 MAY 2025