| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : LEVEL HOLDINGS PTY LTD -v- LAURENDI [No 2] [2013] WADC 33 CORAM : STAUDE DCJ HEARD : 18 SEPTEMBER 2012 DELIVERED : 6 MARCH 2013 FILE NO/S : CIV 478 of 2007 BETWEEN : LEVEL HOLDINGS PTY LTD Plaintiff
AND
JULIE LAURENDI
First defendant
GOLDSPIER CORP PTY LTD
Second defendant
Catchwords: Local government - Town planning - Apportionment of cost of road between subdividers Legislation: Planning and Development Act 2005 s 159
Town Planning and Development Act 1928 s 28A
(Page 2)
Result: Claim dismissed
Representation: Counsel:
Plaintiff : Dr J T Schoombee
First defendant : Mr P G McGowan
Second defendant : Mr P G McGowan
Solicitors:
Plaintiff : Hotchkin Hanly
First defendant : Cornerstone Legal
Second defendant : Cornerstone Legal
Case(s) referred to in judgment(s):
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cinanni v Western Australian Planning Commission [2003] WATPAT 82
Lakewood Estates Ltd v De Boer (1987) 62 LGRA 141
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Skypoint Investments Pty Ltd v Gavranich [2004] WADC 208
Skypoint Investments Pty Ltd v Gavranich [2006] WADC 153
(Page 3)
Introduction 1 The parties were subdividers of adjoining parcels of land in Canning Vale. The plaintiff is seeking to recover half the cost of providing land for and constructing part of Darcy Street, Canning Vale. The plaintiff claims against the first defendant pursuant to s 28A of the Town Planning and Development Act 1928 (TPDA), now repealed, and against the second defendant pursuant to s 159 of the Planning and Development Act 2005 (PDA). The defendants dispute liability.
Legislative provisions 2 Section 28A(1) of the TPDA provided: (1) 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- 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). (Page 4)
3 Section 159 of the PDA relevantly 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; (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). 4 The only difference between the two provisions is that s 159(1)(a) requires that there be access from the subdivided land to the existing road. 5 The claim turns on the construction and application of each provision. The issue with respect to the claim against the first defendant is whether the end of an existing road, which is incomplete, forms a 'common boundary' with a lot which it abuts for the purposes of s 28A(1)(a)(i). The issue with respect to the claim against the second defendant is whether a subdivision road which is a continuation of an existing road 'joins' that road for the purposes of s 159(1)(a)(ii).
Agreed facts 6 The evidence at trial comprised a statement of agreed facts which annexed a number of documents (exhibit 1). 7 In summary, the agreed facts are as follows: 1. The plaintiff was the registered proprietor of lot 9000 on deposited plan 35728 and subdivided that land pursuant to approval granted (Page 5)
by the Western Australian Planning Commission (WAPC) on 26 May 2004. (Annexure A is the approved deposited plan of the subdivision of lot 9000.) 2. In carrying out the subdivision and in accordance with the requirements of subdivisional approval, the plaintiff provided a road, being part of Darcy Street. The total cost of providing land for and constructing the road was $89,953. 3. The first defendant owned land (lot 3 on diagram of survey 73087) which adjoined lot 9000. (Annexure A1 shows the location of lot 3 in relation to that part of Darcy Street constructed by the plaintiff.) 4. On or about 1 February 2006 the WAPC approved the subdivision of lot 3 into two lots, being lot 600 on deposited plan 49315 and lot 9010 on deposited plan 49315. (Annexure B is the approved deposited plan showing lots 600 and 9010.) 5. The end of Darcy Street abutted lot 9010. 6. The first defendant sold lot 9010 to the second defendant which became the registered proprietor on 12 June 2006. 7. On 14 August 2007 the WAPC approved the subdivision of lot 9010 pursuant to the Planning and Development Act 2006. (Annexure C is the approved deposited plan showing the subdivision of lot 9010.) 8. Pursuant to this subdivision the second defendant provided a road that joined Darcy Street, in effect extending Darcy Street to its junction with Shreeve Road. 8 The subdivisions in question took place pursuant to the Canning Vale Outline Development Plan adopted by the City of Gosnells (ODP).
The issues 9 The plaintiff contends that the defendants (or either of them) are liable to contribute one-half of its cost of constructing part of Darcy Street. 10 The claim against the first defendant is made on the basis that, having subdivided lot 3 into lot 600 and lot 9010, it is a later subdivider within the meaning of s 28A(1)(a)(i) because lot 9010 had a common (Page 6)
boundary with the end of Darcy Street, being an existing road for the purpose of the section. 11 The claim against the second defendant is also based on it being a later subdivider for the purposes of s 159(1)(a)(ii) as it provided a road which joined Darcy Street, an existing road to which there was access from the subdivided land. 12 The defence contends that the creation of lot 9010 by the first defendant did not give rise to a liability to contribute because the lot did not have a 'common boundary' with Darcy Street as constructed by the plaintiff (lot 9010 adjoining the end of Darcy Street). Hence s 28A(1)(a)(i) has no application. 13 On the part of the second defendant it is contended that on a proper construction of s 159(1)(a)(ii), the subdivision road, being that part of Darcy Street it constructed, did not 'join' an existing road, being the part of Darcy Street constructed by the plaintiff.
Statutory construction 14 There is no issue that, as a matter of principle, the provisions are to be construed consistently with the language and purpose of the respective statutes. At common law the courts will give effect to a construction which promotes the object of the statute: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381. This approach accords with s 18 of the Interpretation Act 1984 which provides that a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated or not) shall be preferred to a construction that would not promote that purpose or object. 15 In their respective statutory contexts s 28A and s 159 provide a mechanism for an earlier subdivider to recoup part of the cost of putting in a road from which a later subdivider benefits: Cinanni v Western Australian Planning Commission [2003] WATPAT 82. 16 In this court it has been observed that s 28A is not easy to understand in its application to cases where a subdivisional road joins an existing road: see Skypoint Investments Pty Ltd v Gavranich & Anor[2004] WADC 208 [8] (Martino DCJ); Skypoint Investments Pty Ltd v Gavranich & Anor [2006] WADC 153 [45] (Crisford DCJ). In those decisions two different interpretations of s 28A(1) were arrived at. (Page 7)
There is, otherwise, very little authority on point. In Lakewood EstatesLtd v De Boer (1987) 62 LGRA 141 the Full Court of the Supreme Court of Western Australia decided by majority that an original subdivider who had constructed a road entirely within the subdivided land could recover a contribution to the cost of that road from a later subdivider who had acquired land from the original subdivider which had a common boundary with the existing road. The result of that case has no particular application to the present, but Kennedy J (although dissenting from the outcome) observed, in relation to s 28A (prior to its amendment in 1986): 17 In order to understand the language and purpose of s 28A(1) and s 159(1) a short review of the recent legislative history is required. 18 Prior to its amendment in 1986, s 28A(1) read as follows: Where after the coming into operation of s 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) subdivides land and a lot or lots of the subdivision have a common boundary with an existing road; 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 the existing road; and (c) the later subdivider did not contribute 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 (Page 8)
existing road which has a common boundary with the lot or lots referred to in par (a) of this subsection. 19 The 1986 amendment was aimed at overcoming a particular problem, identified by the Minister for Planning, (second reading speech, Legislative Assembly, 12 June 1986, Hansard page 175) as follows: There is a minor alteration of the provisions relating to subdivision roads to overcome a technicality whereby a later subdivider can presently avoid reimbursing an earlier subdivider for half the cost of the section of road provided by that earlier subdivider if it is opposite a road junction. 20 The Town Planning and Development Amendment Act 1986 changed s 28A as follows: 11. Section 28A of the principal Act is amended in subsection (1) by deleting – (1) paragraph (a) and substitute the following paragraph – 21 The first Skypoint Investments decision was made with respect to an appeal from a decision of a deputy registrar allowing summary judgment on the claim. The claim was for half of the cost of two roads that were constructed in part by the plaintiff as the original subdivider. The issue was whether s 28A applied to a road in a later subdivision which was an extension of an existing road and which did not join that road at an intersection. The roads were Ashbrook Avenue and Chalk Elbow in Pearsall. Parts of those roads were constructed by the plaintiff as a requirement of its subdivision. The defendant's land adjoined the land (Page 9)
subdivided by the plaintiff and the defendant for the purposes of his subdivision constructed extensions to the two roads. On its facts the Skypoint Investments case is similar to the present case. 22 Martino DCJ observed two difficulties as follows [9] - [10]: The first is in s 28A(1)(b). That paragraph refers to the original subdivider having subdivided land 'that also has a common boundary with that existing road'. However in cases where a subdivisional road joins an existing road the land of the later subdivision may not have a common boundary with the existing road. In those circumstances the word 'also' in s 28A(1)(b) could be redundant or it could mean that even where the claim is made in relation to a subdivisional road joining an existing road a lot or lots of the later subdivision must have a common boundary with that existing road for the section to apply. The second difficulty relates to the part of the existing road for which the earlier subdivider can recover one-half of the cost. It is clearly not the whole of the existing road, it is 'the part of the existing road … which is joined by a subdivisional road'. However, where the subdivisional road extends an existing road the part which is joined is only the line at which the subdivisional road joins the existing road. 23 His Honour gave significance to the use of the expression 'road junction' in the second reading speech, and came to the view that the minister was referring to an intersection, being a place where two or more roads meet, unite or cross. A junction or intersection thus formed part of an existing road with which the land originally subdivided did not have a common boundary. On this approach, the words 'joins' and 'joined' should be construed as meaning 'at an intersection'. Hence, s 28A may not have been intended to apply to cases where the subdivisional road extends the existing road if the road is not opposite an intersection. His Honour granted leave to defend. 24 The trial was subsequently adjudicated by Crisford DCJ ([2006] WADC 153). Her Honour, without making any reference at all to Martino DCJ's decision, and contrary to it, construed s 28A(1)(a)(ii) to apply to a road of a later subdivision which joins an existing road other than at an intersection or T-junction, that is, by way of an extension or continuation. (Page 10)
25 Dealing with the word 'also' in s 28A(b) her Honour held that it appeared to have been included by oversight and to be redundant. Her Honour found [50]: Subsection (b) appears to be an exact reproduction of the subsection prior to the 1986 amendment without any attempt to modify or tie it in given the insertion of subsection (a)(ii). I am of the view that the use of the word 'also', insofar as subsection (b) relates to subsection (a)(ii) is redundant. The word 'also' seems to relate back to a requirement for a common boundary. However s 28A(1)(a)(ii) which applies to this case does not require it. 26 There are no other decisions of this court or the Supreme Court which bear relevantly on the issues of construction in this case.
The claim against the first defendant 27 In the plaintiff's submission a common boundary was formed with lot 9010 where the end of Darcy Street abutted. The plaintiff submits that the meaning of the word 'boundary' in the section is not limited to the side of a road and includes the truncated end. It contends that by subdividing lot 3 into lots 600 and 9010 the first defendant became liable for a contribution to the cost of Darcy Street because lot 9010 had a common boundary with the end of Darcy Street which was then, in effect, a cul-de-sac. 28 A cul-de-sac is defined by the New Shorter Oxford English Dictionary to mean, relevantly, 'a street, passage, etc, closed at one end; a blind alley'. 29 That a lot can have a common boundary with the end of a cul-de-sac is demonstrated, in the plaintiff's submission, by reference to an unnamed cul-de-sac off Shreeve Road to the north of Darcy Street, the end of which is a hammerhead shape which gives access to a number of residential lots. If those lots were those of a later subdivider, the plaintiff submits that a claim for contribution would doubtless lie on the part of the original subdivider who created the cul-de-sac road. 30 However, it is obvious, in my view, that Darcy Street was not constructed as a cul-de-sac, but as part of a road which would ultimately connect Deflexa Road (within the plaintiff's subdivision) and Shreeve Road. The ODP envisioned that the north-eastern end of Darcy Street, which the plaintiff was required to construct, would be extended to Shreeve Road when lot 3 was eventually subdivided. (Page 11)
31 The first defendant submits that the intention of the Act is to apportion the cost of a road between subdividers whose land has frontage to that road. The first defendant's position is that the end of an existing road which abuts a later subdivider's land does not have a common boundary with it. The plaintiff's lots 176 and 177 had frontage to Darcy Street, but lot 9010 did not. 32 It is the plaintiff's submission that a common boundary has different meanings in s 28(1)(a) and s 28(1)(b). I am unable to accept this proposition. Both subsections speak of land which has a common boundary with an existing road. In my opinion, the end of a road which is incomplete does not form a common boundary with land which it abuts. I accept the defendants' submission that, as a matter of logic, the statutory contribution of 'one-half' implies that there can only be no more than two common boundaries with a road. 33 This conclusion is not disproved by the cul-de-sac example given by the plaintiff, where the cul-de-sac, as such, affords frontage to a lot or lots created by a later subdivider. Moreover, I am not assisted by the plaintiff's argument that lot 9010 should be seen to have frontage to Darcy Street (and therefore have a common boundary with it) by virtue of any common law right of access to Darcy Street that may have been acquired by its abutment to the boundary of the lot. 34 In my view the expression 'common boundary' as used in s 28A(1)(a)(i) means a boundary formed by the frontage of a lot to the side of an existing road. I do not consider that it is reasonable to treat the end of Darcy Street as a cul-de-sac when it is clear from the ODP, as the plaintiff has rightly pointed out, that it would be extended when lot 9010 was subdivided. In my view, to hold that the creation of lot 9010 created a common boundary between that lot and Darcy Street would require a construction of the section which is inconsistent with its language and its legislative purpose. 35 The plaintiff's argument that, looked at in the context of the ODP, the provision by the plaintiff of part of Darcy Street conferred a benefit on the later subdividers of the adjoining land for which they should pay, does not, in my opinion, support a different interpretation. Lot 9010 derived no benefit from the plaintiff's provision of Darcy Street and the lots into which lot 9010 was later subdivided benefited no more from it than the plaintiff's subdivision benefited from Darcy Street's completion by the second defendant. (Page 12)
36 Accordingly, I find that the subdivision of lot 4 to create lots 600 and 9010 did not give rise to a liability on the part of the first defendant to contribute half the cost of Darcy Street.
The claim against the second defendant 37 The claim against the second defendant requires a resolution of the conflict between the respective approaches to the construction of s 28A(1) in the Skypoint Investments Pty Ltd decisions to which I have referred. 38 The conflict arises with respect to the meaning to be given to the verb 'join' where it appears. Section 159(1) is relevantly the same as s 28A(1). 39 I accept that 'join' in its context means 'connect' or 'meet'. With respect to roads, it describes one road meeting another at a junction or intersection, that is, the action of connecting two separate roads. The question in this case is whether it also means the meeting of the end of an existing road with an extension or continuation of that road in an adjoining subdivision. 40 The plaintiff submits that the meaning of 'join' is plain and that the section can be construed without recourse to extrinsic aids, such as the second reading speech. The ordinary and natural meaning of 'join' is not limited to the meeting of two roads at a junction, in its submission, but includes the meeting of an existing road with a later subdivision road at a line which is the common boundary of the two subdivisions. 41 The second defendant submits that s 159(1) allows but one contribution of one-half by a later subdivider whose lot or lots have a common boundary with an existing road or from whose subdivision a road joins the existing road at a junction. 42 The second defendant argues that the construction sought by the plaintiff would lead to an absurd outcome in a case where an existing road shares a common boundary on one side with the land of a later subdivider (being the paradigm situation), and the end of that road abuts the land of another subdivider (being the situation in this case). In such a case, the second defendant submits, if the plaintiff's position were correct, claims for contribution of one-half the cost incurred by the original subdivider would lie against both later subdividers for the same road, an outcome that could not reasonably have been intended. (Annexure D is the defendant's diagram which demonstrates this case.) (Page 13)
43 In my view, the meaning of s 159(1) is not unclear or ambiguous. It creates an entitlement on the part of an original subdivider to a contribution of one-half the cost of a road from a later subdivider of adjoining land in particular circumstances. They are: first, that there is access from the adjoining subdivided land to the existing road; second, that the existing road has a common boundary with the original subdivider's land; and, third, that the existing road has a common boundary with the later subdivision or is joined by a road of that subdivision. That the contribution is one half means that in respect of any section of road there is only one contribution to be had. Only from the subdivider of land on the other side of that road is a contribution due. 44 However, if there is seen to be any ambiguity in the meaning of 'join', it may be readily resolved by reference to the second reading speech which states that the object of the 1986 amendment to s 28A(1) of the TPDA, which is substantially reproduced in s 159(1) of the PDA, was to make it clear that the later subdivider had to contribute not only half the cost of that part of the existing road with which its subdivided lots had a common boundary, but also of that part or parts at which a road of the later subdivision joined. The minister's words 'a section of road … opposite a road junction' remove any doubt on that point. 45 In my view, the verb 'join' means the connecting of another road to the existing road. It does not apply to the situation where the road of a later subdivider is merely an extension of the existing road. 46 Accordingly, the plaintiff's claim against the second defendant must also fail. 47 The action is dismissed. (Page 14)
Annexure A (Page 15)
Annexure A1 (Page 16)
Annexure B (Page 17)
Annexure C (Page 18)
Annexure D |