Re the Honourable Alannah MacTIERNAN MLA, Minister for Planning and Infrastructure; Ex Parte McKay
[2007] WASCA 35
•15 FEBRUARY 2007
RE THE HONOURABLE ALANNAH MacTIERNAN MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE & ORS; EX PARTE McKAY & ANOR [2007] WASCA 35
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 35 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CIV:1884/2006 | 30 OCTOBER 2006 | |
| Coram: | MARTIN CJ STEYTLER P PULLIN JA | 14/02/07 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | RODERICK DOUGLAS McKAY KATHLEEN GLENYS McKAY THE HONOURABLE ALANNAH MacTIERNAN MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE WESTERN AUSTRALIAN PLANNING COMMISSION THE COMMISSIONER FOR MAIN ROADS WESTERN AUSTRALIA |
Catchwords: | Prerogative writ Application for a writ of certiorari Whether the respondents had power to take land under s 161 of the Land Administration Act for the construction of a highway and regional open space Direction sought that the respondents were bound to obtain approval from the Federal Minister for the Environment and Heritage before compulsorily acquiring land Review of the relevant statutory provisions Meaning of word "authorised" within s 161 |
Legislation: | Environment Protection and Biodiversity Act 1999 (Cth), s 3, s 10, s 11, s 16, s 17B, s 18, s 18A, s 19, s 67, s 68, s 72, s 75, s 77, s 133, s 134, ch 2 Pt 3, ch 3, ch 4 Pt 7, ch 4 Pt 9 Div 3 Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), Sch 2 Environmental Protection Act (WA), s 3 Land Administration Act 1997 (WA), s 151, s 161, s 168, s 169, s 170, s 171, s 172, s 173, s 174, s 175, s 177, s 180, s 187, s 192, Pt 9, Pt 10 Lands Resumption Act 1894 (WA) (repealed), s 2 Main Roads Act 1930 (WA), s 16 Planning and Development Act 2005 (WA), s 4, s 5, s 6, s 191 Public Works Act 1902 (WA) (as originally enacted), s 2, s 10, s 11 Town Planning and Development Act 2005 (WA) Western Australian Planning Commission Act 1985(WA) |
Case References: | City of Bayswater v Minister for Family and Children's Services (2000) 108 LGERA 182 Estates Development Co Pty Ltd v Western Australia (1952) 87 CLR 126 Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 Re MacMillan; ex parte Johnson (1946) 47 SR (NSW) Transport Accident Commission v Moore [2004] VSCA 60 Wik Peoples v Queensland (1996) 187 CLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE THE HONOURABLE ALANNAH MacTIERNAN MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE & ORS; EX PARTE McKAY & ANOR [2007] WASCA 35 CORAM : MARTIN CJ
- STEYTLER P
PULLIN JA
RODERICK DOUGLAS McKAY
KATHLEEN GLENYS McKAY
Applicants
AND
THE HONOURABLE ALANNAH MacTIERNAN MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE
First Respondent
- WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent
THE COMMISSIONER FOR MAIN ROADS WESTERN AUSTRALIA
Third Respondent
Catchwords:
Prerogative writ - Application for a writ of certiorari - Whether the respondents had power to take land under s 161 of the Land Administration Act for the construction of a highway and regional open space - Direction sought that the respondents were bound to obtain approval from the Federal Minister for the Environment and Heritage before compulsorily acquiring land - Review of the relevant statutory provisions - Meaning of word "authorised" within s 161
Legislation:
Environment Protection and Biodiversity Act 1999 (Cth), s 3, s 10, s 11, s 16, s 17B, s 18, s 18A, s 19, s 67, s 68, s 72, s 75, s 77, s 133, s 134, ch 2 Pt 3, ch 3, ch 4 Pt 7, ch 4 Pt 9 Div 3
Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), Sch 2
Environmental Protection Act (WA), s 3
Land Administration Act 1997 (WA), s 151, s 161, s 168, s 169, s 170, s 171, s 172, s 173, s 174, s 175, s 177, s 180, s 187, s 192, Pt 9, Pt 10
Lands Resumption Act 1894 (WA) (repealed), s 2
Main Roads Act 1930 (WA), s 16
Planning and Development Act 2005 (WA), s 4, s 5, s 6, s 191
Public Works Act 1902 (WA) (as originally enacted), s 2, s 10, s 11
Town Planning and Development Act 2005 (WA)
Western Australian Planning Commission Act 1985(WA)
Result:
Order nisi discharged
Application dismissed
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Category: B
Representation:
Counsel:
Applicants : Mr T Houweling and Mr W G Spyker
First Respondent : Mr R M Mitchell
Second Respondent : Mr R M Mitchell
Third Respondent : Mr R M Mitchell
Solicitors:
Applicants : Cornerstone Legal
First Respondent : State Solicitor
Second Respondent : State Solicitor
Third Respondent : State Solicitor
Case(s) referred to in judgment(s):
City of Bayswater v Minister for Family and Children's Services (2000) 108 LGERA 182
Estates Development Co Pty Ltd v Western Australia (1952) 87 CLR 126
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Re MacMillan; ex parte Johnson (1946) 47 SR (NSW)
Transport Accident Commission v Moore [2004] VSCA 60
Wik Peoples v Queensland (1996) 187 CLR 1
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1MARTIN CJ: The applicants, Mr and Mrs McKay, seek the issue of a writ of certiorari in order to quash a taking order which would have the effect of compulsorily acquiring land which they own in Ravenswood in Western Australia. The land which is the subject of these proceedings has been compulsorily acquired so that it might be used for the construction of a new highway known as the New Perth Bunbury Highway and which will enable motorists travelling from Perth to Bunbury to bypass the town of Mandurah.
2 Mr and Mrs McKay also seek a declaration that the respondents, who are the Minister for Planning and Infrastructure, the Western Australian Planning Commission and the Commissioner for Main Roads, were bound to first obtain approval from the Federal Minister for the Environment and Heritage for the carrying out of the works involved in the construction of the new highway before moving to compulsorily acquire their land. Mr and Mrs McKay also sought interim and permanent injunctive relief restraining the respondents from entering their land, but sensible arrangements have been made between the parties which have averted any need for interim relief.
The Facts
3 The events giving rise to the claim by Mr and Mrs McKay that their land has not been lawfully taken are not in controversy, although the proper characterisation of some of those events is contentious.
4 On 23 October 2002, the Peel Region Scheme ("the Scheme") was promulgated by the Western Australia Planning Commission pursuant to the provisions of the Western Australian Planning Commission Act1985 (WA) and the Town Planning and Development Act 1928 (WA). The land owned by Mr and Mrs McKay is situated within the area covered by the Scheme. On the Scheme Map which formed part of the Scheme, the land owned by Mr and Mrs McKay was shown as being reserved partly for regional open space, partly for primary regional roads and partly zoned rural. These proceedings are not concerned with the land shown as reserved for regional open space, but are primarily concerned with the land shown as reserved for primary regional roads and, to a small extent, the land zoned "Rural".
5 On 24 November 2003, Mr and Mrs McKay lodged a claim for compensation for injurious affection arising from the reservation of that part of their land which had been reserved for public purposes. On 23 December 2003, the Western Australian Planning Commission elected to acquire the reserved portions of Mr and Mrs McKay's land instead of
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- paying compensation for injurious affection. However, the steps taken to value the land for the purposes of that election to acquire, were overtaken by the compulsory acquisition which has triggered these proceedings. (For a comparison of the distinction between an election to acquire instead of paying compensation for injurious affection and a compulsory acquisition, see Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273.)
6 On 22 June 2005, the Commissioner for Main Roads referred the New Perth Bunbury Highway project to the Commonwealth Minister for the Environment and Heritage pursuant to s 68 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the EPBC Act").
7 On 28 July 2005, the Minister for the Environment and Heritage decided that the proposed action to construct the New Perth Bunbury Highway project was a controlled action pursuant to s 75 of the EPBC Act. As required by that section, he determined that the provisions of Pt 3 of ch 2 of the EPBC Act which were the particular controlling provisions were s 16 and s 17B, because of the potential impact which the project might have upon Ramsar Wetlands, and s 18 and s 18A because of the potential impact which the project might have on listed threatened species and communities.
8 On 5 April 2006, the Minister for Planning and Infrastructure published a notice of intention to take the interest of Mr and Mrs McKay in their land for a public work. The notice was given pursuant to s 170 of the Land Administration Act 1997 (WA) ("the Land Administration Act"). The notice provided that the purpose of the public work for which the land was proposed to be taken was "Construction of the New Perth Bunbury Highway and Regional Open Space", and that the reason why the land was suitable or was needed for the public was "Required for the construction of the New Perth Bunbury Highway and Regional Open Space".
9 On 18 July 2006, the Governor in Executive Council issued the taking order which has given rise to these proceedings. The order bears two headings; namely, "Planning and Development Act 2005" and "Land Administration Act 1997".
10 Below the main heading is another major heading in the following terms, "Primary Regional Road - New Perth Bunbury Highway Regional
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- Open Space". The text of the order commences with the following paragraph:
"Notice is given, and it is declared, that the said pieces or parcels of land described in the Schedule hereto have, in pursuance to the written consent under the Planning and Development Act 2005 of His Excellency the Governor, acting by and with the advice of the Executive Council, dated 18 July 2006, been compulsorily taken under s 177 of the Land Administration Act 1997 and set apart for the purpose of the following public work, namely New Perth Bunbury Highway and Regional Open Space."
"[T]he said land once taken is to be held as Crown Land in the name of the State of Western Australia and an immediate disposition to the Western Australian Planning Commission for an estate in fee simple in possession of the public work herein expressed, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights-of-way, or other easements whatsoever."
12 As these proceedings are only concerned with the part of Mr and Mrs McKay's land taken for the purposes of the New Perth Bunbury Highway that part of the taking order relating to land taken for Regional Open Space can be ignored.
13 However, that part of Mr and Mrs McKay's land purportedly taken for the purposes of the New Perth Bunbury Highway (being newly created Lots 331 and 333) does not correspond exactly to the land reserved for "Primary Regional Roads" under the Scheme.
14 In particular, a portion of land comprising the north-west corner of new Lot 331 was not previously reserved for "Primary Regional Roads" under the Scheme but was zoned "Rural". In an affidavit tendered on behalf of the respondents, Mr Timothy Hillyard, manager of the Land Asset Management Branch of the Department for Planning and Infrastructure has sworn that the portion of Lot 331 zoned "Rural" was taken for the purpose of the New Perth Bunbury Highway "in order to accommodate the interchange which, the Main Roads Department had informed the Department at the time of the taking, formed part of the design of the Highway". That evidence is uncontradicted and should be accepted. It follows that the proceedings are concerned only with that part
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- of Mr and Mrs McKay's land which, on the evidence, was purportedly taken for the purposes of the highway project, albeit that not all the land taken was reserved for such a purpose under the Scheme.
The Issues
15 Mr and Mrs McKay argue that s 161 of the Land Administration Act did not confer power upon any of the respondents to take their land for the New Perth Bunbury Highway, because the respondents were not "authorised" (within the meaning of that section) to undertake that public work unless and until the Commonwealth Minister grants his approval under s 133 of the EPBC Act.
16 Put another way, Mr and Mrs McKay argue that the respondents cannot validly take their land unless and until they have all the approvals necessary to enable the public work - in this case the highway project - to be undertaken.
17 The respondents argue that their power to take the land under s 161 of the Land Administration Act does not depend upon the grant of approval to undertake the highway project pursuant to the provisions of the EPBC Act. They also argue that another source of legislative power for the taking of Mr and Mrs McKay's land lies in s 191 of the Planning and Development Act 2005 (WA) ("Planning and Development Act"). They argue that the exercise of power under that section is not conditioned upon the prior approval of the highway project under the EPBC Act.
18 The respondents also argue that because the taking order could not, of itself, contravene any provision of the EPBC Act, that Act cannot constrain the powers of the respondents to issue a taking order. They further argue that the evidence does not establish that construction of the New Perth Bunbury Highway would contravene any provision of the EPBC Act. In the alternative, the respondents argue that if any portion of the taking order is invalid, that portion can and should be severed from the remainder of the taking order which is valid.
19 In reply to the respondents' alternative argument based upon s 191 of the Planning and Development Act, Mr and Mrs McKay argue that on the proper construction of the taking order, viewed in light of the factual context within which it was issued, that statutory provision was not in fact relied upon and cannot, therefore, validate the taking of their land if it was not authorised by s 161 of the Land Administration Act.
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20 In order to evaluate these competing contentions, it will be necessary and appropriate to review the relevant statutory provisions.
The Legislation
The Environment Protection and Biodiversity Conservation Act
21 Section 3 of the EPBC Act provides that its objects include "the protection of the environment, especially those aspects of the environment that are matters of national environmental significance". Section 10 provides that the EPBC Act "is not intended to exclude or limit the concurrent operation of any law of a State or Territory, except so far as the contrary intention appears".
22 Section 11 provides a conveniently simplified outline of the operation of ch 2 of the EPBC Act, in which some of the statutory provisions relevant to these proceedings are to be found. This chapter provides a basis for the Minister to decide whether an action that has, will have or is likely to have a significant impact on certain aspects of the environment should proceed, by prohibiting a person from taking an action without the prior approval of the Minister, or a declaration by the Minister that approval is not required. Approval is not required if the Minister so declares, or the proposed action is the subject of a bilateral agreement between the Commonwealth and the State or Territory in which the action is taken. Chapter 3 of the EPBC Act makes provision for entry into such bilateral agreements. There was no suggestion that any bilateral agreement of relevance to this case has been entered into.
23 Part 3, falling within ch 2 of the EPBC Act, prohibits a number of specifically defined actions which could have an adverse impact upon environmental values and creates a number of offences in relation to the taking of prohibited actions. The prohibited actions fall into various categories, including actions prohibited by reference to actions having a significant impact on a declared World Heritage property, a National Heritage place or a declared Ramsar wetland. Other prohibited actions are defined by reference to listed threatened species and communities, listed migratory species, protection of the environment from nuclear actions and the protection of the marine environment. Provision is also made for the making of regulations prescribing other actions that may not be taken.
24 The prohibitions within ch 2 that are relevant to these proceedings are the prohibitions relating to actions that will have a significant impact
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- on a declared Ramsar wetland and those that will have a significant impact on a listed threatened species and community.
25 Section 16 of the EPBC Act provides that a person must not take an action that has or will have, or is likely to have, a significant impact on the ecological character of a declared Ramsar wetland. Contravention of the section renders the actor liable to a civil penalty. In addition, s 17B provides that a person is guilty of an offence if the person takes an action which results or will result in a significant impact on the ecological character of a declared Ramsar wetland. Neither s 16 nor s 17B apply if an approval for the taking of the action has been granted under ch 4 Pt 9 of the EPBC Act, if approval is not required or if there is in force a decision of the Minister to the effect that the section is not a controlling provision for the purposes of the action (amongst others).
26 Section 18 provides that a person must not take an action that has or will have, or is likely to have, a significant impact on a listed threatened species included in a number of categories, being the "wild", "critically endangered", "endangered" and "vulnerable" categories, or that has or will have, or is likely to have, a significant impact on a listed threatened ecological community in either the "critically endangered" or "endangered" categories. Contravention of the section renders the actor liable to a civil penalty. Section 18A of the EPBC Act provides that a person is guilty of an offence if that person takes an action which results or will result in a significant impact on a listed threatened species or a listed threatened ecological community. However, s 19 of the EPBC Act provides that s 18 and s 18A do not apply to an action if that action has been approved under Pt 9 of the EPBC Act, or if approval under the EPBC Act is not required or the Minister has declared that the sections are not controlling provisions for the relevant actions (amongst others).
27 Part 7, also in ch 4, of the EPBC Act creates a procedure whereby the Minister may determine whether a proposed action is a "controlled action". Within that Part, s 67 provides that an action that a person proposes to take is a "controlled action" if the taking of that action without approval under Pt 9 would be prohibited by a provision of Pt 3 of the EPBC Act, which provision is then referred to as a "controlling provision" in relation to that action.
28 Section 68 provides that a person proposing to take an action that they think may be or is a controlled action must refer that proposal to the Minister for his or her decision on whether or not the action is a controlled action. The section also provides that a person proposing to take an action
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- that the person thinks is not a controlled action may also refer the proposal to the Minister for determination as to whether or not the action is a controlled action.
29 Section 72 provides that a referral to the Minister of a proposed action must include the information prescribed by the regulations. Regulations have been prescribed specifying the information that must be supplied when a matter is referred to the Minister - see Sch 2 of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth).
30 After receiving a referral, the Minister must decide whether the proposed action is a controlled action and, if so, which provisions of Pt 3 of the EPBC Act are controlling provisions for the proposed action (see s 75 of the EPBC Act). Section 75 also provides that the Minister must make that determination within 20 business days of the referral and also provides that if the Minister decides that the action is a controlled action, the Minister must designate a person as proponent of the action.
31 Section 77 of the EPBC Act requires that within 10 business days of deciding whether an action that is the subject of a proposal is a controlled action or not, the Minister must give written notice of that decision to the person proposing to take the action and if some other person has been designated as proponent of the action, that other person.
32 I digress to observe that because of the structure of the sections of Pt 3 prohibiting action, the effect of a determination by the Minister that a proposed action is not a controlled action is to take the proposed action outside the scope of those prohibitions. However, because the prohibitions are defined by reference to the objective effect of the proposed action, a determination by the Minister to the effect that a proposed action is a "controlled action" does not determine the question of whether or not a particular action is or would be prohibited. That is a question that would be determined by a court in the event that proceedings for a civil penalty or alleging the commission of an offence were instituted.
33 Later provisions of the EPBC Act make provision for different methods of assessment of a controlled action. After the applicable method has been determined and applied, s 133 of the EPBC Act provides that the Minister may approve the taking of the proposed action and further, (under s 134) may attach conditions to that approval. Division 3 of Pt 9 of the EPBC Act provides that the Minister may suspend or revoke
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- an approval previously given, or may revoke, vary or add to any conditions attached to an approval. Under this Division, the Minister may also reinstate an approval which has been suspended or revoked.
34 At the risk of oversimplification, the procedures created by the EPBC Act, which are relevant to the issues that are raised in these proceedings, commence with a referral of a proposed action to the Minister. If the Minister decides that the proposed action is not a "controlled action", that action may be taken without fear that it contravenes the EPBC Act. However, if, as in this case, the Minister determines that the proposed action is a "controlled action", the party proposing to take the action may either proceed with the process of assessment in the hope of obtaining ministerial approval (in which case the action will not contravene the EPBC Act), or alternatively may proceed with the proposed action without approval. In the latter case, the question of whether or not the action was in fact prohibited by the Act would be resolved upon the commencement of proceedings for a civil penalty or an offence.
35 In the present case, the point in that process which had been reached, at the time of the purported taking of the applicants' land, was that of a determination by the Minister to the effect that the proposed action of constructing the New Perth Bunbury Highway is a controlled action and that the relevant controlling provisions are s 16 and s 17B relating to wetlands of international importance and s 18 and s 18A relating to listed threatened species and communities. Further, the Minister has designated the third respondent; namely, the Commissioner for Main Roads, as the proponent of the action. There is no direct evidence before the Court as to the steps which have been or will be taken by the Commissioner of Main Roads to obtain the approval of the Commonwealth Minister, other than the provision of a very substantial document entitled "Main Roads Western Australia New Perth Bunbury Highway - Preliminary Information Form" apparently dated 29 June 2006, which has been described in evidence (albeit not by the respondents) as a report to the Commonwealth Minister to decide the level of assessment. We were advised by counsel for the respondents that although the designated proponent was participating in the process of assessment created by the EPBC Act, the respondents reserved their position as to whether or not the construction of the highway would in fact contravene any provision of the EPBC Act if undertaken without the prior approval of the Minister.
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Main Roads Act
36 Section 16 of the Main Roads Act 1930 (WA) ("Main Roads Act") provides that the Commissioner of Main Roads may construct all highways or main roads and do all things necessary for or incidental to their proper management.
Planning and Development Act
37 Section 191 of the Planning and Development Act provides that:
"(1) The responsible authority may, for the purpose of a planning scheme and with the consent of the Governor, take compulsorily under and subject to Part 9 of the Land Administration Act 1997 (but subject to subsection (3)), any land comprised in the scheme, and whether situate within or without the boundaries of the district of the responsible authority.
(2) Land acquired under subsection (1) is to be acquired in the name and on behalf of the responsible authority.
(3) When any land is taken compulsorily under the powers conferred by this section the provisions of -
(a) sections 166 to 171 inclusive; and
(b) section 180,
of the Land Administration Act 1997 do not apply to or in respect of the land or the taking or in any manner whatsoever, and that Act is to be read and construed as if the provisions were deleted."
The Land Administration Act
39 Part 9 of the Land Administration Act deals with the compulsory acquisition of interests in land. Section 151 defines the terms that are used in Pt 9 and Pt 10 of the Land Administration Act (Pt 10 deals with compensation for land compulsorily acquired). In that section, the expression "public work" is defined to have the same meaning as in the
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- Public Works Act 1902 (WA) ("Public Works Act"). In that Act, by s 2, the expression "public work" is defined to mean and include, amongst other things:
"(1) every work which the Crown, or the Governor, or the Government of Western Australia, or any Minister of the Crown, or any local authority is authorised to undertake under this or any other Act;
…
(20) any road, stock route, viaduct, or canal;
(21) any work incidental to any of the aforesaid works;
(22) any land required for or in connection with any work as aforesaid;".
"(1) Whenever the Crown, the Governor, the Government, any Minister of the Crown, any State instrumentality or any local government is authorised, by this Act, the Public Works Act 1902 or any other Act, to undertake, construct or provide any public work, and the use of any land or any interest in land is required for the purposes of the work, then, unless otherwise specially provided -
(a) any interest in the land held by a person other than the Crown may be taken;
…
in accordance with this Part."
42 Section 170 provides that if it is proposed to take an interest in land without agreement, the Minister (being the Minister for Lands) must issue a notice of intention to take the interest which, by s 171 of the Land Administration Act, must contain specified information.
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43 I digress to observe that s 168 to s 171 are amongst those sections that are expressly stipulated to have no application to the acquisition of land undertaken pursuant to s 191 of the Planning and Development Act.
44 It is therefore noteworthy that a notice of intention to take, purportedly given pursuant to s 170 of the Land Administration Act, was given by the Minister for Planning and Infrastructure, who is the Minister in whom the administration of the Land Administration Act is vested by the Governor and is therefore the "Minister" for the purposes of the issue of notices pursuant to s 170 of that Act. Because s 170 of the Land Administration Act is one of those sections expressly excluded from operation when land is acquired pursuant to s 191 of the Planning and Development Act, Mr and Mrs McKay rely upon the issue of this notice as support for their proposition that the taking order was not issued in purported reliance upon the powers conferred by the Planning and Development Act. They claim the notice was issued solely in reliance upon s 161 of the Land Administration Act.
45 The curiosity of the statutory scheme is enhanced when one considers that ss 172 to 175 and s 177 of the Land Administration Act, all of which potentially apply to the acquisition of land under the powers conferred by s 191 of the Planning and Development Act, are all predicated upon the service of a notice of intention pursuant to s 170 of the Land Administration Act. But that section is expressly excluded from having any application to such acquisitions. Section 177 of the LandAdministration Act is of particular significance in this regard, because it is the section which empowers the making of a taking order. But, by 177(1), the section is expressly predicated upon the issue and registration of a notice of intention to take pursuant to s 170 of the Land Administration Act (being a section expressly excluded from the Act when the exercise of the powers conferred by s 191 of the Planning & Development Act are to be considered).
46 Section 180 of the Land Administration Act, which is another of the sections of that Act which are expressly excluded from operation when the power conferred by s 191 of the Planning & Development Act is exercised, provides that a taking order may be annulled or amended within 90 days after its registration. On the face of that provision, it is difficult to see why it would have been thought desirable to exclude its operation when land was being acquired pursuant to s 191 of the Planning & Development Act.
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47 Section 187 of the Land Administration Act provides that if an interest in land is being designated for a public work, and the Minister is satisfied that the interest is not required for the public work, the Minister may by order designate the interest, or a part of it, for another public work or cancel the designation. Later sections of the Land Administration Act, from s 189 onwards, make provision for dealings in land acquired for a public work after it has been determined that the land is no longer required for that purpose. Further, s 192 of the Land Administration Act provides that where land has been acquired for a public work and the authority holding the land is satisfied that the land is not presently required for the public work, the land may be leased (inferentially for such period as it is not required for the public work).
Authority to Take Under s 161
48 In order to succeed in these proceedings, Mr and Mrs McKay must establish that none of the respondents were "authorised" within the meaning of s 161 of the Land Administration Act, to undertake, construct or provide the relevant public work, being the New Perth Bunbury Highway, unless and until the approval of the Commonwealth Minister was obtained under the EPBC Act and that there was no other source of power to take the land which was not conditional upon the grant of such approval. However, if Mr and Mrs McKay fail to establish their basic proposition as to the scope of s 161, their claim must fail and it is not necessary to determine the arguments advanced by the respondents with respect to the alternative source of power (s 191 of the Planning and Development Act). It is therefore appropriate to first address the primary argument advanced on behalf of Mr and Mrs McKay as to the scope of the power conferred to s 161 of the Land Administration Act.
49 The basic proposition advanced on behalf of Mr and Mrs McKay is to the effect that land may only be taken under s 161 where a proposed public work is "authorised" in the sense that there is statutory permission for the work to be undertaken or carried out, which permission is not subject to any legal impediment. They submit that the authorisation referred to in s 161 is the complete and effectual legal authority to "undertake, construct or provide any public work" and that any lesser authority, which does not enable the work to be lawfully implemented, does not provide the authority to carry out the work upon which the acquisition of land for that purpose is predicated.
50 Support is drawn for the argument from the fact that the reference to authorisation in s 161 is unqualified. It is said that the section does not
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- countenance the concept of a conditional or incomplete or contingent authority. Further support is drawn from a supposed public policy to the effect that private land should only be compulsorily acquired where there is "a high degree of certainty" that it will be applied for a public work. It is said to be contrary to that policy to construe the section in such a way as to authorise the compulsory acquisition of land merely in anticipation that a right to carry out a public work may possibly accrue at some time in the future.
51 Mr and Mrs McKay contend that because the Commonwealth Minister had determined that the action of constructing the highway was a controlled action for the purposes of the EPBC Act, but had not approved that action at the time of the taking order, there was no unqualified, definite lawful right in the State or its instrumentalities to construct the highway. They contend this leads to the conclusion that the State and its instrumentalities were not "authorised" to undertake that public work for the purposes of s 161 and therefore lacked the power to acquire that part of Mr and Mrs McKay's land which is intended for use in the highway project.
52 Mr and Mrs McKay referred the Court to the decision in Re MacMillan; ex parte Johnson (1946) 47 SR (NSW), 16. That case concerned the construction of a provision of the National Security (War Service Moratorium) Regulations which empowered a Magistrate to issue a warrant "authorising" the delivery of possession of a dwelling house which is unoccupied or about to become unoccupied to the applicant for the warrant. The construction of that power arose in unusual factual circumstances which it is presently unnecessary to recount. It is sufficient to observe that both the factual context and the legislative context of that case were very different to the present circumstances.
53 Jordan CJ observed at 18:
"The word 'authorize', according to its natural meaning, signifies the conferring upon a person of a right to do something which, apart from the authorization, he does not possess. It has been argued that it is used with this meaning in reg. 30A, with the result that a person to whom a warrant is issued may please himself whether he executes it. But the word, like any other word, may be controlled by its context; and, to give it the meaning contended for, would defeat the obvious intention of the regulation-making authority. In its present context, I am of
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- opinion that 'authorizing' in reg. 30A must be read as including 'requiring'." (footnote omitted)
54 To me, that passage appears to establish no more than the fairly obvious proposition that the meaning to be given to the word "authorise" will draw much from its context. The unusual factual context of that case is perhaps indicated by the next paragraph in the judgment of the Chief Justice, when he observed:
"I feel considerable surprise, however, that, at such a time as the present, when any apparently unoccupied house is subject to the risk of being at any moment broken into and seized by able-bodied 'squatters' prepared to resist eviction, the magistrate should have thought fit to issue his warrant to a woman. It is obvious that a warrant of this kind should be issued only to a responsible person, such as a police officer, of whom it may reasonably be expected that in any circumstance he will be able to give effect to it."
55 It is probably too harsh a construction of that paragraph to suggest that the Chief Justice was implying that women were not to be taken to be responsible persons, but the passage does nevertheless illustrate the limited utility of the observations made in that case for present purposes. More relevant contemporary authority for the obvious proposition that the meaning of the word "authorise" or "authorised" is likely to be controlled by its statutory context is to be found in Transport Accident Commission v Moore [2004] VSCA 60 at [13 - 14] and Wik Peoples v Queensland (1996) 187 CLR 1 at 257 - 258.
56 Amongst the meanings of the verb "authorise" which could be applied, depending upon legislative context, is the primary meaning given to that word in the "Macquarie Dictionary" (3rd ed) which is:
"1. [T]o give authority or legal power to; empower (to do something)",
- or its secondary meaning, within the same dictionary:
"2. [T]o give authority for; formally sanction (an act or proceeding)."
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58 Accordingly, central to the resolution of the present case is the determination of whether the term "authorised", when used in s 161, means, as Mr and Mrs McKay contend, that the relevant State agencies must have an unqualified and unconditional presently enforceable lawful right to carry out the work or whether, as the respondents contend, the term merely connotes the existence of a legislative sanction to undertake the relevant public work, whether or not that sanction is qualified by the need to obtain further approvals or permissions before the work is carried out.
59 In my opinion, there are a number of reasons to conclude that the latter meaning is to be preferred and to reject the contention that the word "authorised" in s 161 requires the existence of an unqualified, unconditional presently enforceable lawful right to carry out the work before the power to acquire land can be exercised.
60 Prominent amongst those reasons is the observation that in a very large number of cases the carrying out of a public work will require various forms of permissions and approvals. Approvals may be required under planning legislation - see s 5 and s 6 of the Planning and Development Act and City of Bayswater v Minister for Family and Children's Services (2000) 108 LGERA 182. Environmental approval may be required under either or both State or Commonwealth environmental legislation. For the State legislation see the Environmental Protection Act 1986 (WA), s 3(1). Licenses of many and varied kinds may be required in order to undertake particular types of work. The more complex the public work undertaken, the more likely it is that various forms of permissions and approvals will be required. And it is in the nature of the planning and development of a public works project that those permissions and approvals will be obtained as and when required in the course of the planning and development of the project.
61 A construction of s 161 of the Act which would constrain the power to acquire land until each and every one of the permissions or approvals required to complete the planning, development and construction of any project for the carrying out of a public work would significantly constrain and inhibit the exercise of the powers conferred by that section. That would, in turn, constrain and inhibit the various statutory provisions in other legislation which authorised the carrying out of various public works, such as s 16 of the Main Roads Act. In my opinion, it would not be appropriate to attribute to the legislature an intention to constrain and inhibit those important powers, unless such an intention was evident from
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- the language used or, perhaps, from the legislative history of s 161 and its legislative predecessors.
62 The legislative history of the section and its predecessors compels the conclusion that the term "authorised" in s 161 means nothing more than "sanctioned" and does not carry the additional connotation of an unqualified and unconditional immediately enforceable right to undertake the work.
63 Section 2 of the Lands Resumption Act 1894 (WA) (now repealed) provided that any land required for specified purposes, which included "opening, altering, or diverting roads" could be taken under any subject to the provisions of that Act by the Governor and Council.
64 The origins of s 161 of the Land Administration Act are to be found in s 10 of the Public Works Act, as originally enacted in 1902. That section was in the following terms:
"10 WHENEVER His Majesty, or the Governor, or the Government of the State, or any Minister of the Crown, or any local authority is authorised, by this or any other Act, to undertake, construct or provide any public work, any land required for the purposes of such work may be taken under the provisions of this Act."
65 It will thus be seen that the language of that section is substantially the same as that now found in s 161 of the Land Administration Act.
66 It is clear from the Parliamentary Debates pertaining to the second reading of the Public Works Bill in 1902 that the object of cl 10 was to substantially expand the range of entities having the power to take land compulsorily. In that context, the responsible Minister at the time, the Hon M L Moss, observed that the expanded range of entities were to (Western Australia, Parliamentary Debates, Legislative Council, 30 September 1902, 1301 (Matthew Lewis Moss, Minister)):
"[H]ave the power to take land compulsorily, for the purpose of carrying out works they are authorised by statute to undertake."
67 That observation lends support to the proposition that the word "authorised" in cl 10 of the then Bill was used to signify the existence of a statutory power to undertake the work on the part of the acquiring entity, rather than the existence of an unqualified and unconditional right to
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- undertake the work without requiring any further form of permission or approval.
68 That conclusion is reinforced by consideration of s 11 of the Public Works Act which, as enacted, was in the following terms:
"11 THE Governor, by order in Council, may authorise the Minister to undertake, construct, or provide any public work, subject as to railways to section ninety-six, and such authorisation shall be deemed an authority to such Minister by and under this Act."
69 Thus the reference to authorisation in s 11 is consistent with the meaning which I would attribute to that term in s 10; namely, the conferral of a power to undertake the relevant public work and not in the sense of an unconditional and unqualified right to complete the work without the need for further permission or approval.
70 It is, I think, significant that s 161 of the Land Administration Act contains an express reference to the Public Works Act. In its current form, s 11 of the Public Works Act provides that:
"The Governor, by order in Council, may authorise the Minister to undertake, construct, or provide any public work except as to railways, in which case the authorisation may be given to the Public Transport Authority and is subject to section 96, and such authorisation shall be deemed an authority given by and under this Act."
71 The use of the term "authorised" in this section bears the same meaning as I would attribute to the term in the section's original form; that is, in the sense of a conferral of power. Given that the Public Works Act is specifically referred to in s 161, it would accord with a coherent legislative scheme to give the word "authorised" in that section the same meaning as the equivalent term is given in legislation which is specifically referred to.
72 Other sections of the Land Administration Act also provide an indication of the meaning that should be given to the term "authorised" when used in that Act. For example, s 170(2) provides that:
"A notice of intention need not be issued if the proposed taking is for the purpose of a railway authorised by a special Act."
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- Further, s 177(2) provides:
"If a special Act has been passed authorising the construction of a railway, the Minister may make a taking order consistent with that Act."
74 Another indication to the same effect is to be found from the language of s 182(1) of the Land Administration Act. That section provides:
"If it appears to the Minister that it may be necessary to use any land for a proposed public work for which the Minister is authorised to take interests in land, the Minister may authorise a person -
(a) to enter on that land; and
(b) to do anything necessary in order to study the feasibility of the proposed public work."
75 By its very nature, the power to authorise entry onto land, which may or may not be required for a proposed public work, will fall to be exercised before all permissions and approvals necessary to undertake the work will be in place. Indeed, it would ordinarily be impossible to obtain those provisions or approvals without prior entry onto the land for the purposes of assessing the feasibility of undertaking the public work. If, however, the exercise of the power to authorise entry is, as the section provides, conditional upon the authority of the Minister to take interests in land and if, as Mr and Mrs McKay contend, that authority is contingent upon all necessary permissions and approvals having first been obtained, in practical terms, the power to authorise entry prior to taking would almost never arise. That cannot have been the legislative intention. The terms of this section appear to me to provide a very powerful indication that the word "authorised" when used in the Land Administration Act is used to connote a conferral of power rather than the present existence of an unconditional and unqualified right to undertake the relevant work.
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76 A further indication as to the meaning to be given to the term "authorised" in the context of s 161 is to be derived from the terms of the section itself. The section identifies the prospective sources of the relevant authorisation by the following words:
"… by this Act, the Public Works Act 1902 or any other Act."
77 Thus, the authority to which the section refers must be that provided by legislation. The requirement that the authorisation have such a source is consistent with the notion that the authority, to which reference is being made, is the provision of power to undertake the work in question, so that the work in question is not beyond the scope of the powers conferred upon the entities identified in the section. The requirement that the authorisation have a legislative source is not, however, apt to describe a circumstance in which there is a prohibition imposed by some other statutory provision, from which exemption may be sought by a permission or approval. So, leaving to one side the fact that the EPBC Act is Commonwealth legislation, it would not be apt to describe that Act as providing authorisation for the Commissioner of Main Roads to undertake the construction of the New Perth Bunbury Highway. On the contrary, it seems, to me, to be relatively clear that the source of the Commissioner's authority to undertake that work is s 16 of the Main Roads Act. If and when the Commonwealth Minister grants an approval to undertake the highway work under the EPBC Act or it is established that the EPBC Act has no application, it could fairly be said that the EPBC Act does not preclude the Commissioner from exercising the authority conferred upon him by s 16 of the Main Roads Act. However, it would be distorting language indeed to suggest that the EPBC Act provided any source of authority for the undertaking of the public work.
78 Another statutory indication to the effect that s 161 of the Land Administration Act is not intended to only be available when there is an immediate unconditional and enforceable right to undertake the relevant public work is to be derived from those sections of the Land Administration Act which make provision for the circumstance in which the land is not immediately required or in which it is no longer required at all. Those provisions are not consistent with a construction of s 161 which would limit its application to works on the cusp of commencement.
79 For these various reasons, the contention which is central to the argument advanced on behalf of Mr and Mrs McKay must be rejected. In my opinion, it is clear that when used in the context of s 161, the requirement that one or more of the entities specified in that section be
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- authorised to undertake the relevant public work means no more than that the undertaking of that public work be within the scope of the powers conferred upon them by an Act. In this case, the undertaking of the New Perth Bunbury Highway project is plainly within the scope of the powers conferred upon the Commissioner of Main Roads by s 16 of the Main Roads Act. The power to take land for the purposes of that project therefore exists whether or not some other form of permission or approval might be required under another Act before the Commissioner can fully undertake or complete the work in question.
80 That conclusion is sufficient to dispose of the proceedings brought by Mr and Mrs McKay without the necessity of determining whether s 191 of the Planning and Development Act provided an alternative source of power for the acquisition. That is because s 161 of the Land Administration Act, properly construed, provides an ample source of power sufficient to sustain the taking of the land in question. However, in deference to the argument advanced in support of the respondents' contentions, I will make some observations on that subject.
Section 191 of the Planning and Development Act
81 The first observation I would make in relation to the respondents' reliance upon s 191 of the Planning and Development Act is that it is somewhat unusual to have to determine, as a question of fact, the statutory source of power actually relied upon for the taking of land. That question of fact appears to arise from an apparent desire on the part of the respondents to rely upon sources of power for the taking in the alternative without being prescriptive as to the particular source of power relied upon.
82 Notice of intention to take all those portions of Mr and Mrs McKay's land that were taken was given pursuant to s 170 of the Land Administration Act. That is one of the sections that has no application to a taking of land under the Planning and Development Act. The respondents submit that the inference of fact that the land was being taken only under s 161 of the Land Administration Act should not be drawn because the giving of the notice of intention to take is consistent with a taking relying upon both sources of power.
83 The respondents have a similar explanation for the express reference in the taking order to the land being compulsorily taken under s 177 of the Land Administration Act. As I have already observed, that section is expressly conditional upon the registration of a notice of intention pursuant to s 170 of the Land Administration Act, which has no
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- application to the compulsory acquisition of land utilising the power conferred by s 191 of the Planning and Development Act. The respondents further assert that s 177 of the Land Administration Act can, nevertheless, be read as applying to the acquisition of land pursuant to the powers conferred by the Planning and Development Act if all the words relating to the registration of a notice of intention are ignored. They say that course is compelled by that portion of s 191 of the Planning and Development Act which provides that the Land Administration Act is to be read and construed as if s 166 to s 171 inclusive and s 180 were deleted.
84 There are, I think, some difficulties with that proposition. Firstly, s 191 of the Planning and Development Act does not say that s 177 of the Land Administration Act is to be read as if all the portions of that section pertaining to the registration of notice of intention were deleted. Secondly, if that section is to be read as the respondents would contend it would simply provide:
"177(1) The Minister may make a taking order.
… "
85 The expression of the power to make a taking order in such an unconditional and unqualified way would be, to say the least, unusual, even if the power is read as constrained by other provisions such as s 161 of the Land Administration Act.
86 Section 191 of the Planning and Development Act also provides that land acquired under that subsection is to be acquired in the name and on behalf of the responsible authority. It is, I think, debatable whether the taking order complies with that requirement because it specifies that the land once taken is to be held as Crown land in the name of the State of Western Australia. However, the taking order goes on to provide that the land is to be the subject of an immediate disposition to the Western Australian Planning Commission, which is the relevant authority for the purposes of s 191. The decision of the High Court in Estates Development Co Pty Ltd v Western Australia (1952) 87 CLR 126 would lend support to the proposition that the form of the taking order complies with the requirements of s 191, but the matter is not entirely free from doubt.
87 The respondents also point to the fact that the taking order was issued with the authority of the Governor; being a requirement of s 191, but not a requirement of s 161 of the Land Administration Act.
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88 The fact that the taking order extends beyond that land reserved under the Scheme for use as primary regional roads and extends to include land zoned rural under the Scheme compels the respondents to put a very broad construction on the power conferred by s 191 of the Planning and Development Act. That section applies potentially to any land comprised in a planning scheme. Of course, most of the inhabited land in the State is now the subject of one or more planning schemes. The only other qualification imposed by the section is that the land be taken "for the purpose of" the relevant scheme. The respondents submit that this expression is broad enough to cover land zoned rural if, as a matter of fact, it is required for the implementation of some other use as designated by the Scheme; in this case, the construction of a primary regional road on land reserved for that purpose. It is easy to see that if this is the breadth of the power conferred by s 191, there is very little practical constraint upon its exercise.
89 The respondents' submission as to the breadth of the powers conferred by s 191 of the Planning and Development Act must also be evaluated alongside their submission that the effect of the section is to remove and delete many of the provisions of the Land Administration Act which provide safeguards to landowners, including the important procedural safeguard requiring the issue of a notice of intention to take. Taken together, the respondents' submissions, if accepted, would enable the power conferred by s 191 of the Planning and Development Act to subvert in a significant way the general scheme for the compulsory acquisition of land created by Pt 9 of the Land Administration Act.
90 I am reluctant to arrive at a concluded view to the effect that s 191 of the Planning and Development Act has the broad and significant consequences for which the respondents assert in a case in which that conclusion is not necessary for its proper determination. For my part, I would leave the definitive expression of a view on the complicated and contentious issues which have arisen in relation to s 191 of the Planning and Development Act to a case in which such a determination is necessary and in which the determination will form a part of the ratio of such a case.
The Respondents' Other Arguments
91 As I have observed, the respondents also raised arguments as to whether Mr and Mrs McKay had established, as a fact, that the construction of the highway would contravene the EPBC Act if undertaken without the prior approval of the Commonwealth Minister. The respondents also advanced arguments with respect to the severance of
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- any invalid portion of the taking order. However, because of my conclusion that s 161 of the Land Administration Act provides an adequate source of power for the taking of Mr and Mrs McKay's land, irrespective of any issue pertaining to possible contravention of the EPBC Act, it is unnecessary to determine these issues.
Conclusion
92 For these reasons the order nisi should be discharged and the proceedings brought by Mr and Mrs McKay dismissed.
93 STEYTLER P: I agree with Martin CJ.
94PULLIN JA: I have read the reasons of the Chief Justice and I agree with them. I only wish to add the following observations.
95 As the Chief Justice reveals, the Commonwealth Minister determined, pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the EPBC Act"), that the proposed action of constructing the new Perth to Bunbury Highway was a controlled action. The Minister designated the Commissioner for Main Roads as the proponent of the action.
96 The solicitor for the appellants produced some documents which appear to be documents submitted by Main Roads to the Commonwealth Minister, one being the "Main Roads Western Australia New Perth Bunbury Highway - Preliminary Information Form" and another called the "Assessment of Potential Impacts to Matters of National Significance". These documents, and another document submitted to the Commonwealth Minister, contain over 300 pages of information. It is only necessary to mention that the documents concede that construction will have an impact on some migratory birds and threatened species. So, for example, the construction of the highway will result in the clearing of vegetation important to Carnaby's White Tailed Black Cockatoos for foraging purposes. According to the "Preliminary Information Form", this species of bird is designated as an "Endangered" species under the EPBC Act. The reports reveal that construction of the highway may result in the removal of four out of 23 (ie 17 per cent) recorded nest trees used by this species and located within the construction area. The "Preliminary Information Form" states that "A primary objective during detailed design will be to … reduce this impact".
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97 The "Assessment of Potential Impacts" report acknowledges that it might not be possible to avoid destruction of some of these nest trees. It is said that if so, they will be "replaced by artificial nest boxes". There is no information in the report about whether replacement of natural trees by artificial nest boxes will be effective.
98 Counsel for the respondent was asked whether the respondents' position was that if no Ministerial approval was obtained, that work would proceed. The following answer and subsequent exchange records the representations made to the Court about the respondents' intentions:
"MARTIN CJ: … Can we take it that the respondents that you represent will comply with the Commonwealth Act?
MITCHELL, MR: Your Honour can take it that it is the current intention of the respondents not to commence any works until the Commonwealth minister's approval is obtained, and then obviously it will be under an obligation to act in accordance with the conditions of that approval. I don't concede that the construction of the road would, if it occurred without that approval, in fact, contravene any of the penalty provisions of the Environment Act.
MARTIN CJ: That is why I worded my question as specifically as I did.
MITCHELL, MR: Yes.
MARTIN CJ: So that in other words compliance with the act - it's the intention of your clients to comply with the act, but there might be debate about whether the work would, in fact, involve a contravention of the act.
MITCHELL, MR: Yes, and whether the approval would, in fact, be required.
MARTIN CJ: Be required, yes, I understand.
MITCHELL, MR: I don't know that we're contemplating that the Commonwealth minister might say no, and obviously the state would have to reassess its options for the road if that were to be the case, but currently we are seeking the approval, are hopeful of obtaining it, and then planning on then undertaking work in the course of that approval.
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- PULLIN JA: But without approval - I mean, is it your client's position that if approval is not given by the Commonwealth, that there is a circumstance where your clients could proceed with the work because it disagreed with the lack of approval.
MITCHELL, MR: That certainly, in my submission, would be an adventurous approach simply to go and do the work without seeking some declaration as against the Commonwealth minister.
MARTIN CJ: Then the question would fall to be tested under prosecution under either section 16 or 18.
MITCHELL, MR: Yes, or there are injunction provisions which somebody might bring action against us if we were to try that, and that would then be sorted out or the state, I suspect, in this sort of situation would act more proactively and seek some judicial determination as to whether or not the action, in fact, did require that approval, but that is a bridge which the respondents would cross if and when we ever came to it and it would depend on the Commonwealth minister refusing to grant approval.
STEYTLER P: But your point is that as matters stands there is no intention of bypassing or ignoring the requirements of the EPBC Act or any that may be imposed by the minister - no present intention of doing anything.
MITCHELL, MR: That's correct, yes."
99 As a result of these representations to the Court, it is not necessary to consider the oral submission made by the appellants that for the construction "to proceed without … obtaining the approval of the Minister is prohibited".
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