RANGEBAY Corporation Pty Ltd v Shire
[2006] WASC 258
•17 NOVEMBER 2006
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | RANGEBAY CORPORATION PTY LTD -v- SHIRE OF KALAMUNDA [2006] WASC 258 |
| CORAM | : MURRAY J | ||
| HEARD | : 14 AUGUST 2006 | ||
| DELIVERED | : 17 NOVEMBER 2006 | ||
| FILE NO/S |
| ||
| BETWEEN |
|
AND
SHIRE OF KALAMUNDA
Defendant
Catchwords:
Town planning and development - Subdivision of land - Obligation to pay cell infrastructure contribution - Interpretation of relevant district planning scheme
Legislation:
Nil
Result:
Declaration that plaintiff rightly paid $463,320
[2006] WASC 258
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M J Hardy |
| Defendant | : | Mr D W McLeod |
Solicitors:
| Plaintiff | : | Hardy Bowen |
| Defendant | : | McLeods |
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Brivern Holdings Pty Ltd v City of Melville, unreported; FCt SCt of WA;
Library No 45/82; 5 October 1982
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth)
(1981) 147 CLR 297
Mills v Meeking (1990) 169 CLR 214
South Sydney Municipal Council v James (1977) 35 LGRA 432
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MURRAY J
MURRAY J: This action was brought by originating summons for a declaration, "that the amount of the Cell Infrastructure Contribution" (CIC) the plaintiff was obliged to pay to the defendant in respect of the subdivision the subject of Subdivision Approval No WAPC 122344 is $421,200 plus GST of $42,120 - totalling $463,320".
2 The facts were established by affidavit evidence. It was unnecessary
to expand upon that material by viva voce evidence. The affidavit evidence to which I refer is that of the defendant's executive manager of planning and development services, who is, among other skills, a qualified town planner, a Ms Burrows, and a director of the plaintiff and its consulting civil engineer, Mr Marjoram, who also has long experience in the design, construction and management of subdivisional projects. He is a former councillor of the defendant and was, for five years, its president.
3 This is effectively an argument about the timing of the payment of
the CIC in respect of certain land in five lots on Arthur and Bruce Roads, Wattle Grove, an area of land within the defendant shire. The land is zoned urban under the Metropolitan Region Scheme and was the subject of an application for subdivisional approval which, when granted by the Minister for Planning, imposed a requirement on the defendant to make provision in its Town Planning Scheme to facilitate the subdivisional development of land which was identified as Cell 9, in which the land the subject of this action is located. The consequence of that was the enactment of Amendment No 155 to the relevant District Planning Scheme No 2 (DPS 2) of the defendant.
4 Cell 9 is effectively an area of land to the west of Tonkin Highway,
to the east of Roe Highway and to the north of Welshpool Road as it runs up towards Lesmurdie in the hills. It is a large area of land which is roughly triangular in shape and abuts a large area of public open space known as Hartfield Park. The land is to be developed as a residential estate. As I have said, the land the subject of this action is part of the land within Cell 9.
5 Once amendment No 155 was made and published in the
Government Gazette of 31 October 1997, pp 6023-6, it was fully incorporated into DPS 2 and by the Town Planning and Development Act 1928 (WA), s 7(3), it attained "full force and effect as if it were enacted by this Act". As such a statute, I agree with counsel that the proper interpretation of its provisions is a process of statutory interpretation. For present purposes it is sufficient to note the terms of the Interpretation Act 1984 (WA), s 18 and s 19. Section 18 provides that in interpreting an Act,
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"a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object".
6 In that regard, s 19 provides that it is permissible to refer to material
extrinsic to the enactment itself to confirm that a provision in the Act bears the ordinary meaning conveyed by the text, taking into account its context in the Act and the purpose or object underlying its enactment. Such material may also be used to determine what is the meaning of the words used, in their ordinary sense, and to determine the meaning of an enactment when it is ambiguous or obscure. In this regard, the extrinsic material may not be used to require a meaning consistent with the purpose of the enactment to be given to an enactment, where to give effect to that purpose would lead to a result that was manifestly absurd or unreasonable. I need not refer to decided cases, of which there are a number, stating the law in those terms.
7 I put to one side, for present purposes, the amendment made to
cl 6.13 of DPS 2. Otherwise, the purpose of the amendment was to rezone the land in Cell 9 from various zones it had formerly borne within the terms of DPS 2 to the urban development zone under the Scheme. Importantly in relation to this litigation, the purpose of the amendment is revealed by the Scheme Report provided by the defendant as an attachment to its resolution making the amendment. It was to:
"provide provisions to permit the carrying out of Cell Infrastructure Works and apportionment of Cell Infrastructure Costs equitably among the owners of land within Cell 9 so as to permit the orderly and proper planning of the urban subdivision and urban development of Cell 9 at no cost to the Council's ratepayers (other than the owners of the land within Cell 9)."
8 It should be borne in mind, in my opinion, that the land in Cell 9 was
generally speaking previously rural land now targeted for an integrated urban subdivision and development at the behest of owners of the land within the Cell. The defendant's purpose was therefore to ensure that the costs of the urban infrastructure work required to be performed to facilitate the subdivision and development would be borne by the owners of the land who would benefit from that subdivision and development within Cell 9 and not generally by the ratepayers of the defendant Shire. The same purpose is referred to in very similar terms in Part 1 of
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Appendix L, cl 2.2 It is this Appendix which contains the provisions applying to the specially designated area, Cell 9.
9 By cl 4 of that Appendix, the Council of the defendant may, but is
not obliged to, carry out, or contract with another to carry out Cell Infrastructure Works. Such works are defined in cl 1 to mean the acquisition of land for any public facility or service, or for a school, or to provide and improve public open space, and such activities as widening and improving certain roads and the provision of easements or ways, including cycleways, walkways and the like.
10 The term "Cell Infrastructure Costs" is also defined in cl 1 widely, to
include not only the costs of directly carrying out such work, but to recoup Council's administrative costs, to pay any compensation and legal costs, to acquire land and generally to include all costs and expenses which the Council is required to meet in order to carry out Cell Infrastructure Works.
11 Appendix L provides for the raising of funds out of which Cell
Infrastructure Costs may be paid. Consistently with the policy or purpose to be given effect by the provisions of Appendix L, the payment of a CIC is, by cl 7.1, required of every owner of land in Cell 9 who wishes to subdivide or develop that land and the CIC must be paid before the subdivision or development of the land occurs.
Again in cl 1, the term "Cell Infrastructure Contribution" is defined for each owner to mean:
" … a sum of money which bears the same proportion to Cell Infrastructure Costs as the Dwelling Yield of all that owner's land in Cell 9 bears to the Dwelling Yield of all land in Cell 9".
The term "Dwelling Yield" in relation to land which is allowed to be developed for residential purposes means the maximum number of dwellings permitted on that land.
13 The concepts are simple enough. As I understand them it is intended
to work in this way. The owner of one or more large rural lots who wishes to subdivide and develop his land or have someone do it on his behalf is, before subdivision or any development may occur, required to pay a CIC in respect of that land in his ownership, calculated as his share of the total Dwelling Yield of all the land in Cell 9. That share will be the proportion which the total Dwelling Yield of his land bears to the total
[2006] WASC 258
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Dwelling Yield of all the land in Cell 9. The calculation of Dwelling
Yield is not a matter which arises for consideration in this case.14 There is, however, an argument between the parties to which I
should advert. The definition of a CIC in cl 1 provides that it is a sum of money which bears the same proportion to Cell Infrastructure Costs as the Dwelling Yield of all (my emphasis) of the owner's land in Cell 9 bears to the Dwelling Yield of all the land in Cell 9. The defendant's officers interpret this as importing a requirement to pay a CIC calculated for the whole of a developer's land in Cell 9, as I understand it, upon the first subdivision proposal for any portion of the land of that owner.
15 If I have understood that correctly, that is a view not entirely
consistent with the attitude of the defendant overall when it asserts that the outcome most consistent with the stated purpose of the enactment of Appendix L is that which most closely aligns the calculation and payment of a CIC to the point of clearance of conditions for final subdivisional approval and hence to the point of subdivision.
16 It is not, I think, the interpretation which I would necessarily place
on the definition of a CIC in cl 1, but, in any event, it seems to me to be unnecessary to finally decide the point in these proceedings. My tentative view, consistently with my view of the scheme and its operation, is that the concept of a CIC is one which, having regard to the operation of Appendix L overall and to the provisions of cl 7 in particular, has its application when an owner of land in Cell 9 proposes to subdivide or develop that land and the sum to be paid is the CIC which is related to the particular subdivision or development proposed.
17 That is a view which flows naturally, for example, from the
provisions of cl 7.1 and 7.2 which requires payment, at the latest by the time that the subdivision is approved and subdivision occurs, or by the time when it is proposed that development should occur. It is that sum in respect of which there is then an obligation for payment that, under cl 7.7, may be the subject of an arrangement for deferred payment. In other words, the calculation is made having regard to the total Dwelling Yield of the owner's land expressed as a proportion of the total Dwelling Yield in Cell 9, but what is payable in a case where only part of the land of an owner in Cell 9 is proposed to be subdivided or developed, will be the CIC of that owner relating to that part.
18 However, as I say, this case does not require a firm decision that the
quantum of CIC calculated pursuant to the formula provided by the
[2006] WASC 258
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definition has been correctly calculated. This case is concerned with the fact that the defendant expresses the CIC as a sum of money per dwelling unit, and the question is which rate, expressed in that way, is applicable to this case.
19 At the time of an earlier application for subdivisional approval by the
plaintiff, there was debate between the parties about the amount of CIC which was required to be paid. The debate reflected the different views about the proper interpretation of the definition of a CIC to which I have referred above. Ultimately, at a meeting held on 19 August 2002, the Council of the defendant resolved, in effect, to accept the submission of the plaintiff that it should only pay a CIC in respect of land the subject of a particular application for subdivisional approval, but Council sought to qualify its acceptance of that position by saying that the plaintiff should be advised that the CIC should, in that context, "be paid to the amount as determined by Council at the time of clearance of the subdivision lots". This, of course, is the position for which it argued before me.
20 The submission now made is that the plaintiff should be taken to
have accepted that position in its subsequent dealings with the defendant. It is asserted that the plaintiff and defendant made an agreement that this would be the process and the point of time at which the obligation to pay would arise, whether or not that was the position which was required to be adopted on the proper interpretation of the provisions of Appendix L. The plaintiff, however, asserts that it could do no more than note the position adopted by the Council of the defendant. It did not accept that that would be the position in its subsequent dealings with the Council. In my opinion, the evidence is insufficient to establish an enforceable agreement applying to the declaration sought in this case in the terms alleged by the defendant.
21 It is evident that the CIC required to be paid by a subdividing and/or
developing owner of land in Cell 9 does not necessarily relate directly to the Cell Infrastructure Work made necessary or which the defendant proposes to undertake as a consequence of the particular subdivision or development. The exercise is not one which requires the calculation of a Cell Infrastructure Cost related to the specific proposal for subdivision and/or development. It is an obligation to pay a proportional contribution, the proportion being that resulting from the calculation in relation to Dwelling Yield.
22 I note that by cl 3 of Appendix L there is an Outline Development
Plan approved and adopted in respect of Cell 9 to which, except as
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expressly modified by the provisions of Appendix L, the general provision of cl 6.13 of DPS 2 applies. The process need not be discussed in any detail, but under cl 6.13 there is a process to be followed by which the Council of the defendant may be brought to a point of approving the Outline Development Plan subject to its adoption by the WA Planning Commission, whereupon it will be the basis for approval of subdivision and development applications within the area of Cell 9.
23 It is unnecessary to discuss the process by which such a plan may be
amended, and it is sufficient to note that it will deal with matters which include the Cell Infrastructure Works which may be required and, importantly, proposed population and residential densities. As I understand it then, it is by reference to that plan that the total Dwelling Yield for the land in Cell 9 may be calculated, to which the Dwelling Yield of a particular owner of land within Cell 9 may be applied in the calculation of the CIC required to be paid or arrangements made for payment prior to subdivision or development of any land of that owner.
24 As to the process of subdivision, without going to the relevant
provisions of the Town Planning and Development Act 1928 (WA) and Regulations, the subdivisional process is initiated by an application for approval lodged with the WA Planning Commission and referred by it to the local government for comment. In due course, the Commission advises the developer of the conditions required to be satisfied before final approval is obtained. The work needed will require the approval of the local government which will ultimately declare itself to be satisfied that the preconditions of which it has the supervision have been complied with. The Commission is advised and will endorse its approval on the deposited plan or diagram. As can be seen, all of that will take some time, but ultimately the point will be reached where the local government expresses its agreement that the preconditions the performance of which it must supervise, have been satisfied, whereupon it is only a minor process of final checking which will lead to the grant of subdivisional approval.
25 In the defendant's view it is only at that point in the process that the
Dwelling Yield in respect of the particular project may be ascertained. It is only then, in the defendant's view, that that proportion may be applied to a calculation of Cell Infrastructure Costs. It is only then, the defendant argues, that a developer may be required to pay the CIC, out of which a portion, at least, of the Cell Infrastructure Costs may be defrayed in respect of the carrying out of Cell Infrastructure Works.
[2006] WASC 258
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26 The implication is that those works would only be carried out to the
extent that the trust account required to be established by cl 6 of Appendix L was in funds, but I do not think there is any such implication to be drawn from the provisions of Appendix L. Under cl 6.2, the trust account is to be debited with Cell Infrastructure Costs and credited with CICs. Under cl 6.3, moneys borrowed by the Council may be repaid to it out of the trust account. The clear implication is that the timing of the carrying out of Cell Infrastructure Works is a matter for the defendant and the work may be funded by the application of general revenue or authorised borrowings, as required, in the ordinary way. The costs thus incurred as expenses which the Council is required to meet in order to carry out the Cell Infrastructure Works, of whatever kind under whichever part of the definition of the term those costs are incurred may, by the application of cl 6, be defrayed out of the trust account.
27 Nonetheless, it is clear that a CIC is determined by applying the
share of the overall dwelling yield determined in relation to the land to be subdivided to Cell Infrastructure Costs. It seems to me that these may be costs and expenses already incurred by the defendant and I accept that those costs might not yet have been incurred, but may be anticipated as costs which will be incurred and expenses which the defendant will be required to meet in respect of the carrying out of Cell Infrastructure Works, within any part of the definition of that term, which the Council of the defendant has determined should be undertaken. It will be recalled that by cl 4.1, the Council has a discretion to carry out such works, but is not obliged to do so.
28 I think the terminology is wide enough to include costs and expenses
which it is estimated may be incurred in the future because, by cl 7.8, it is
provided:"(Estimates): The Council may, before any item of Cell Infrastructure Costs has been finally ascertained from time to time (but in any event shall at least annually) make estimates of that cost on the best advice or information available to the Council and in calculating Cell Infrastructure Contributions may rely upon such estimates."
It is apparent, I think, that the estimates which are envisaged are those made on the best advice available in respect of specific items of costs which may in future be incurred. Any number of such items, together with costs already incurred, may go to make up the total of the Cell
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Infrastructure Costs to which the formula in relation to Dwelling Yield is to be applied to determine a particular CIC.
The point is, I think, that under cl 7.1 the owner of the land is required to pay the CIC in accordance with the provisions of cl 7.2 - 7.7 before subdivision or development of the land occurs. To enable that to be done, it follows that the defendant has the obligation, in a timely way, to determine, at least by the time when subdivisional approval is obtained, what the CIC must be. To make its calculation it needs to determine what the Cell Infrastructure Costs are calculated to be at that time, adding to the costs already incurred those, if any, which it has estimated will be incurred in carrying out the Cell Infrastructure Works which it has determined are to be performed. I take the view that cl 7.8 requires such estimates to be made because although it says that such estimates "may, before any item of Cell Infrastructure Costs has been finally ascertained" be made, the subclause requires such estimates to be made at least annually.
30 The evidence establishes that the defendant was greatly concerned,
during the period relevant to this litigation, at the rapid rate by which Cell Infrastructure Costs were increasing, not the least because of rapid increases in the value of the land since 1997 which, Ms Burrows deposes, escalated the cost of land for Cell Infrastructure Works, including land for public facilities, school sites, public open space, road widening, the provision of rights of way and land for drainage works. It appears that the defendant had been in the habit of making cost estimates annually, but on 20 October 2003 Council resolved that in future the rate for CICs should be reviewed six-monthly.
31 At that time, the calculation required by the provisions of
Appendix L, of actual and estimated costs, led to a determination of CICs which was expressed as a rate of $8100 per potential dwelling, having regard to the overall Dwelling Yield for Cell 9. The Council was advised that, commencing in August 2003, estimates had been made on the advice of a consultant which resulted in the recommendation adopted by the Council that as from 1 November 2003 a CIC should be calculated at the rate of $10,000 plus GST per potential dwelling unit. It is not suggested in these proceedings that the determination of the CIC made on 20 October 2003, in that form and by that process, did not comply with the statutory scheme expressed in the provisions of Appendix L to which I have referred.
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32 Important to the arguments of the parties in respect of the timing of
payment of a CIC are the provisions of cl 7.2 which is in the following
terms:"(Manner of Payment): The Cell Infrastructure Contribution must be paid to the Council (or arrangements pursuant to clause 7.6 or clause 7.7 made with the Council to the satisfaction in all respects of the Council) prior to:
(a) in the case of subdivision, the date upon which the Commission endorses its approval on a diagram or plan of subdivision of that owner's land (and the Council may withhold its clearance to any plan or diagram of subdivision until the owner has given to the Council evidence of compliance with this clause 7); or (b) in the case of development, at the time of carrying out development or commencing any use of a parcel of land."
I need not refer to the remaining provisions of cl 7 which are concerned with payment on terms, the payment of interest, charging the liability to pay against the land and the resolution of disputes by a process of arbitration.
33 By cl 7.6 it is provided that the liability to pay may be defrayed by
the defendant accepting land within Cell 9 at its Council's discretion. The land accepted may be "to the value of any moneys due" in respect of a CIC. It is clear on the evidence before me that where the defendant takes that course the value attributed to the land is that applicable at the time of the transfer to the defendant. That seems to me to be the right approach, but I think it does not help to determine the amount of the CIC or the time for its payment.
34 Again, the subclause is not happily worded. The payment or
satisfactory arrangements must be made "prior to", or at the time of carrying out the development or use of the land for which the approval of Council has been sought. That seems to me to be relatively easy to interpret. The Council of the defendant may withhold its approval until the payment or satisfactory arrangements have been made. Council then gives its approval and under cl 7.1 the development may be undertaken. That is the time of carrying out the development or commencing the use of the land.
[2006] WASC 258
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35 I think a similar process is provided for in relation to subdivision.
Again, it is provided that the payment or satisfactory arrangements must be made with the Council of the defendant "prior to" the Commission's endorsement of its approval on the diagram or plan of subdivision, and the Council is expressly given the power to withhold its clearance of the plan or diagram until the owner has provided to the Council evidence of compliance in the form of payment of the correct or applicable CIC, or the making of satisfactory arrangements for that payment. In other words, the defendant may delay its clearance of the plan or subdivisional diagram so that the WA Planning Commission may endorse its approval of the subdivision, a necessary precondition to the carrying out of the subdivision.
36 In my view, cl 7.2(a) must be read with s 24 of the Town Planning and Development Act. Section 7(3) of that Act, as I have already noted, gives the clause full force and effect as if it were enacted by the Act. In that regard it was not put to me that there is any inconsistency between s 24 and cl 7.2(a) which would require resolution in these proceedings.
37 Section 24 provides, inter alia, for the referral by the WA Planning Commission of a plan of subdivision to the relevant local government, which has 42 days to forward to the Commission a written memorandum setting out its view as to the conditions which should be applied before the subdivision is approved. Thereupon s 24(3) applies. I set it out hereunder:
"After receiving a plan or copy and accompanying memorandum and any advice of a relevant environmental condition forwarded to it under subsection (2) and considering any objections or recommendations contained in the memorandum and any such advice the Commission shall approve or refuse to approve the plan or require the applicant for approval to comply with such conditions as the Commission thinks fit to impose before approving the plan."
Under subs (5) and (6) an owner or applicant for approval of a subdivision who objects to conditions imposed may request the Commission to reconsider the condition objected to and the Commission may then alter or revoke the condition or then approve the plan.
38 These procedures flesh out the provisions of s 20(1)(a) of the Act
requiring the approval of the Commission for subdivision, which approval may be given "subject to conditions which shall be carried out before the approval becomes effective". As s 24(3) makes clear, where conditions
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are imposed which must be complied with before the subdivision will be approved, the best that can be said of the proposed subdivision is that it has approval subject to compliance with the conditions. In truth, it has not received approval and will not be approved until the Commission is provided with evidence that the conditions imposed have been complied with.
39 So far as the supervision of the performance of those conditions lies
within the power of the local government, the approval will not be given by the Commission until the local government "clears" the plan or diagram of subdivision or, put another way, the performance of the conditions. Only when the Commission is satisfied about that does it approve the plan and therefore the proposed subdivision.
40 That process is further amplified by s 20AA of the Act which allows
a period of three years after the day upon which the Commission approves the plan of subdivision for the owner to submit a diagram or plan of survey of the subdivision to the Commission with a request that it approve the diagram or plan of survey. The Commission will endorse its approval on the diagram or plan if satisfied that it is in accordance with the plan of subdivision approved under s 20(1)(a) and, if the approval is subject to conditions, the conditions have been complied with. Then the Commission endorses its approval on the diagram or plan. But the crucial act is the act of approval given upon compliance with the conditions as notified by the local government.
41 In my opinion, cl 7.2(a) of Appendix L of DPS 2 provides an
additional basis upon which the Council of the defendant may decline to clear the plan or diagram of subdivision so that it may be approved. The effect of cl 7.1 and 7.2 is to make the payment of the CIC determined by the Council of the defendant a condition which must be performed before the plan of subdivision can be cleared for approval and therefore before the subdivision takes place. The provisions of Appendix L, and cl 7 in particular, are directed to providing means by which payment of a CIC may be enforced by the simple expedient of allowing the defendant effective control over whether and when final subdivision approval may be obtained and the subdivis ion may proceed.
42 Appendix L is so structured that payment may be made or required to
be made from the point where the Council of the defendant determines the CIC required of the owner who wishes to subdivide or develop land in Cell 9. It does that when it determines the Cell Infrastructure Costs applicable at any time, utilising the power in cl 7.8 as required, and when
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it fixes the amount of the CIC "in relation to an owner" by applying to the Cell Infrastructure Costs figure the ratio of the Dwelling Yield of all that owner's land in Cell 9 to the Dwelling Yield of all the land in Cell 9 as provided by the definition of a CIC in cl 1.
43 Once all that is known, the particular owner is entitled to make the
payment required and he is obliged to do so before the time canvassed in cl 7.1 arrives. Once there is an ability within the terms of Appendix L to make the payment, as the provisions of Appendix L are constructed there is no period during which payment may not be made. Appendix L is not constructed upon the basis that the obligation to pay is only triggered by a demand for payment.
44 In this case, the affidavit evidence appears to establish the following
sequence of events. The plaintiff put its application for approval of its subdivision before the WA Planning Commission on 4 June 2003. In the ordinary way, that was forwarded to, among others, the defendant in accordance with the statutory scheme. The defendant received the application on 16 June 2003. At that time, it will be recalled that the CIC which was operative as from 1 November 2002 was the figure calculated at the rate of $8100 per dwelling unit. I understand that the total of the dwelling units which are permitted to be constructed on the land of an owner equates to the Dwelling Yield of that land.
45 On 20 October 2003, the defendant adopted a CIC as from
1 November 2003, calculated at the rate of $10,000 per dwelling unit. Knowing of that decision, on 23 October 2003 the plaintiff tendered its cheque for $463,320 in payment of its CIC. That was comprised of a calculation of $421,200 as the plaintiff's Dwelling Yield proportion of the total Dwelling Yield then applicable, (ie: 52 dwellings at a rate of $8100 each) together with GST in the sum of $42,120. It is accepted that the resulting sum of $463,320 is a correct calculation of the CIC, including GST, if it was open to make the payment at that time. The cheque was not accepted by the defendant but was returned by its solicitors. On 31 October 2003, the plaintiff again tendered the cheque in payment of the CIC. Again, on 21 November 2003, it was returned by the defendant.
46 Subsequently, payment was accepted, but not in full satisfaction of
the obligation to pay the CIC. It was accepted pending the determination of the issue in these proceedings. I am told that the equivalent calculation at the rate of $10,000 per dwelling unit would require an extra payment of $98,800 as the CIC, together with an additional $9880 in payment of GST. I am told that the sum of $108,680 is held in trust by the plaintiff's
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solicitors pending the determination of the question of the liability to pay
by the Court.47 On 28 October 2003, the WA Planning Commission advised its
conditional approval of the subdivisional plan. In other words, it did not give final approval but specified various conditions to be complied with before approval could be obtained. Consistently with the operation of the provisions of Appendix L of DPS 2 in conjunction with the provisions of the Town Planning and Development Act, to which I have referred above, the conditions notified included Condition 9 in the following terms:
"Satisfactory arrangements being made with Council for the making of a contribution in accordance with Appendix L of the Shire of Kalamunda District Planning Scheme No 2 for Cell Infrastructure Costs, Cell Infrastructure Contributions or Infrastructure Works to serve the proposed Wattle Grove Cell 9 to the satisfaction of the Western Australian Planning Commission. (LG)"
The letters LG signify that it was for the local government, the defendant, to supervise the performance of Condition 9 and to advise the Commission "on the clearance of the conditions", as the Commission's notice put it.
48 The defendant declined to advise the Commission that this condition
had been performed because of the dispute with the plaintiff as to the amount required to satisfy it in terms of cl 7.2. Ultimately, on 8 April 2004 the defendant advised the Commission generally of the clearance of the conditions which were the subject of its supervision, with the exception of Condition 9 because of the dispute. I note that the defendant's position in that regard was put by the Commission in its advice of 28 October 2003 in an explanatory note No 6 which said, in part, in respect of Condition 9, "The costs applicable are the figure adopted by Council at the time the subdivision clearance is issued."
49 The subdivisional plans were approved by the WA Planning
Commission acting by a delegate, and that approval was endorsed on the plans pursuant to the Town Planning and Development Act, s 20AA, on 27 April 2004.
50 I turn then, finally, to my conclusions, having regard to the evident
purpose of the enactment of Appendix L and my interpretation of its provisions. At least by 31 October 2003, when the plaintiff tendered its cheque for $463,320 in payment of its CIC obligation, there was an
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applicable CIC calculated by the defendant as required by Appendix L and expressed as the sum of $8100 per dwelling unit. The formula in the definition could be applied to calculate the CIC of the plaintiff in relation to the land which it sought to subdivide. That calculation could be made so as to satisfy the definition of a CIC in cl 1. It is not the case that the plaintiff erred in that regard.
51 The plaintiff was then entitled to pay the CIC and discharge its
obligation in terms of Condition 9. The defendant was not entitled to refuse to accept the payment because it wished it to be made at the greater rate applicable from 1 November 2003. That is not what cl 7.2 means by arrangements made to the satisfaction of the defendant's Council; nor is that the making of satisfactory arrangements within the meaning of Condition 9. There was nothing to activate the operation of cl 7, but once paid it would seem that there would not be any entitlement to a refund of the money paid if the particular subdivision was not finally approved or if it did not, for any reason, then proceed.
52 The plaintiff should have its declaration in the terms sought. I will
hear counsel on the terms of any consequential orders which may be
required.
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