Shire of Kalamunda v RANGEBAY Corporation Pty Ltd - [2008] WASCA 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SHIRE OF KALAMUNDA -v- RANGEBAY CORPORATION PTY LTD [2008] WASCA 235

CORAM: PULLIN JA
BUSS JA
NEWNES AJA

HEARD: 13 MAY & 21 OCTOBER 2008

DELIVERED : 19 NOVEMBER 2008

FILE NO/S: CACV 155 of 2006

BETWEEN: SHIRE OF KALAMUNDA
Appellant
AND
RANGEBAY CORPORATION PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
Citation  :RANGEBAY CORPORATION PTY LTD -v- SHIRE OF KALAMUNDA [2006] WASC 258
File No  :CIV 1763 of 2005

Catchwords:

Town planning - Local planning scheme - Correct construction of the scheme - Whether Shire obliged to accept a payment tendered by the respondent - Turns on own facts and the correct construction of the scheme - No point of general principle

Legislation:

Town Planning and Development Act 1928 (WA)
Town Planning and Development (Subdivisions) Regulations 2000 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr D R Williams QC & Mr D W McLeod
Respondent: Mr S D Hall SC & Mr M J Hardy

Solicitors:

Appellant: McLeods
Respondent: Hardy Bowen

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

Carr v Finance Corporation of Australia (1981) 147 CLR 246
Coulton v Holcombe (1986) 162 CLR 1
Metwally (No 2) v University of Wollongong (1985) 59 ALJR 481
Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631
O'Brien v Komesaroff (1982) 150 CLR 310

PULLIN JA: This is an appeal by the Shire of Kalamunda against the judgment of Murray J, declaring that:
The amount of the Cell Infrastructure Contribution (CIC) the [respondent] was obliged to pay to the [appellant] in respect of the subdivision the subject of Subdivision Approval No WAPC 122344 is $421,200 plus GST of $42,120 - totalling $463,320.
The writing of these reasons presented considerable difficulty for a number of reasons. First, there were no pleadings and it is not entirely clear from the trial judge's reasons precisely what issues were raised and what arguments were advanced by the parties; secondly, difficulties arose because issues discussed during the oral submissions were not the subject of grounds of appeal; thirdly, the grounds of appeal raised issues which, even if resolved, would not determine the primary issue between the parties; fourthly, the appellant did not administer the planning scheme in question in accordance with the governing scheme text; and finally, the parties misunderstood or misused terms in the scheme text.
One point which is clear, is that it is necessary to consider the proper construction of provisions in the appellant shire's District Planning Scheme No 2 (DPS 2) and, in particular, the provisions in Appendix L entitled 'Provisions Relating to Specified Areas. Part 1: Wattle Grove Cell 9' (Appendix L). A second point which is clear is that the primary issues between the parties were about:
(a)whether the amount tendered to the appellant by the respondent in October 2003 had been calculated by the appellant in September 2002 to be the Cell Infrastructure Contribution payable by the respondent; and, or alternatively or,
(b)whether the respondent was 'entitled' by Appendix L to pay that sum and whether the appellant was obliged to accept it.
Cell 9 is the description given to an area of 196 hectares of land governed by Appendix L. Cell 9 originally consisted of 99 lots of land. The respondent owned some of the lots. The particular dispute concerns the proposal to subdivide five lots in Cell 9 which were owned by the respondent.

The relevant statutory provisions

Appendix L forming part of DPS 2 had 'full force and effect as if it were enacted by' the Town Planning and Development Act 1928 (WA) (TPD Act). See s 7(3) of the TPD Act. Before turning to the provisions of Appendix L, it is necessary to refer to some other provisions in the TPD Act and regulations made under it, namely the Town Planning and Development (Subdivisions) Regulations 2000 (WA) (Regulations).
Section 20(1)(a) of the TPD Act, stated that a person shall not:
[W]ithout the approval of the Commission … subdivide any lot … and the Commission may give its approval under this paragraph subject to conditions which shall be carried out before the approval becomes effective.
The reference to the 'Commission' was a reference to the Western Australian Planning Commission (WAPC).
Section 20(2) of the TPD Act provided that the Registrar of Titles should not create or register a certificate of title under the Transfer of Land Act 1893 (WA) for land the subject of a plan of subdivision unless the diagram or plan of survey of the subdivision of that land submitted to the WAPC under s 20AA had been 'endorsed with the approval of the' WAPC. Section 20AA(1) of the TPD Act provided that a person to whom approval of a plan of subdivision had been given, may within three years of the date on which Commission approval is given, submit to the Commission in the prescribed manner and form, a diagram or plan of survey of the subdivision and request the WAPC to approve that diagram or plan of survey of the subdivision. Section 20AA(2) provided that if the WAPC was satisfied that the diagram or plan of survey was in accordance with the plan of subdivision approved under s 20(1)(a), and if that approval was given subject to conditions and the conditions had been complied with, the WAPC shall endorse its approval on the diagram or plan of survey.
Regulations to the TPD Act provided that an application for approval under s 20(1)(a) (subdivision application) was to be made to the WAPC in a form and manner approved: reg 4. Regulation 5 provided that when considering a subdivision application, the WAPC was to have regard to certain relevant matters including any relevant town planning scheme. Regulation 6 provided that after considering a subdivision application or dealing application, the WAPC was to approve the plan of subdivision, approve it subject to conditions, or refuse to approve the plan of subdivision and notify the applicant in writing. Regulation 7 provided that if the WAPC endorsed its approval on a diagram or plan of survey, the Commission was to give the diagram or plan to the Registrar of Titles under the Transfer of Land Act 1893. Once that happened, certificates of title for the new lots could be issued.

Appendix L

Reference can now be made to the provisions of Appendix L. In cl 1 there was a definition of the boundaries of Cell 9 and a definition of 'Cell 9 ODP', meaning an Outline Development Plan approved and adopted in respect of Cell 9 pursuant to certain provisions of DPS 2. The appeal papers did not include a copy of the Cell 9 ODP.
The expression 'Cell Infrastructure Costs' was defined to mean the cost of carrying out certain works and the cost of paying certain compensation and fees. A list of these costs was included in the definition. The list read:
(a)the costs of and incidental to the preparation of the Cell 9 ODP and the carrying out of the Cell Infrastructure Works;
(b)the administration costs of the Cell 9 ODP and the subdivision and development of Cell 9 …
(c)all compensation payable in respect of the carrying out of Cell 9 Infrastructure Works and the expenses of determining and settling such compensation;
(d)the cost of the acquisition of any land within Cell 9 for the purpose of carrying out Cell Infrastructure Works …
(e)the costs of extension or relocation of any services within Cell 9;
(f)all legal costs and fees whatsoever incurred by the Council in or in contemplation of any arbitration or other legal proceedings arising out of or concerning the carrying out of the Cell Infrastructure Works or any appeal against a decision or determination of the Council …
(g)all interest paid or payable on moneys borrowed, credit obtained or financial accommodation extended for the purposes of carrying out Cell Infrastructure Works;
(h)all other costs and expenses which the Council is required to meet in order to carry out the Cell Infrastructure Works; and
(i)all costs and expenses of the exercise by Council of any power conferred by clause 5 upon the Council.
The expression 'Cell Infrastructure Contribution' was defined to mean:
[I]n relation to an owner, a sum of money which bears the same proportion to Cell Infrastructure Costs as the Dwelling Yield of all of that owner's land in Cell 9 bears to the Dwelling Yield of all land in Cell 9.
The expression 'Cell Infrastructure Works' was defined to mean:
(a)the acquisition of land for any of the works or facilities referred to in this definition;
(b)the acquisition of land for a school …
(c)the provision of land for public open space …
(d)the upgrading, remedial measure for and modification of any water‑way …
(e)the widening and improvement of the following roads within Cell 9:
Hale Road
Arthur Road (existing and proposed extension)
Sheffield Road;
(e)the provision of any easement or way, including without limitation, any carriageway, cycleway, walkway or dual use path …
(f)the provision or upgrading of drainage works.
'Dwelling' was defined to have the meaning set out in the Residential Planning Codes which in short meant a building or portion of a building used or intended to be used by a single person, family or small group of people. 'Dwelling Yield' was defined to mean:
(a)in relation to land permitted pursuant to the Cell 9 ODP to be developed for residential purposes, the maximum number of dwellings permitted on that land.
(b)in relation to land other than land described in paragraph (a), one Dwelling for each complete 450m² of the land;
Clause 2.2 of Appendix L read:
The purpose of establishing and designating Cell 9 as a specified area is to permit the carrying out of Cell Infrastructure Works and the apportionment of [CIC] 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 land within Cell 9).
Clause 4.1 of Appendix L read:
The Council may in its discretion (but is not obliged to) carry out or contract with any person for the carrying out of Cell Infrastructure Works.
Clause 4.2 identified ('[f]or the sake of clarity') some works not included in Cell Infrastructure Works, including the provision of sewerage works, reticulated water supply, provision of gas and electric power, provision of telecommunications, and the provision of, or contribution to, the cost of providing roads other than those specified in the definition of Cell Infrastructure Works.
Clause 5 conferred powers on the Council to enter into contracts for the purposes of Appendix L and to acquire and dispose of land within Cell 9. Clause 6 provided for the establishment by the Council of a trust account and for the trust account to be debited with Cell Infrastructure Costs and credited with Cell Infrastructure Contributions. Clause 6.3 provided for moneys borrowed by Council to be repaid out of the trust account.
Clause 7.1 and cl 7.2 of Appendix L read:
7.Cell Infrastructure Contributions
7.1(Restriction on subdivision and development): The owner of land in Cell 9 must not subdivide or develop that land or allow any person to do so without paying the Cell Infrastructure Contribution in accordance with the succeeding provisions of this clause 7.
7.2(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.
Clause 7.6 permitted the Council in its discretion to accept land within Cell 9 to the value of any moneys due in respect of Cell Infrastructure Contributions. Clause 7.7 and cl 7.8 read:
7.7(Payment on terms): The Council may in its discretion agree to accept payment of a Cell Infrastructure Contribution on terms of deferred payment and may secure the payment to the council of any deferred payment in such manner as the Council may in its discretion decide.
7.8(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.
The provisions of the TPD Act referred to above reveal that the process of subdivision involved the submission to the WAPC of an application for approval to subdivide land. If approval was given subject to conditions then the approval was not 'effective' (s 20(1)(a) TPD Act) until the conditions were complied with. Once the conditions had been complied with, the plan of subdivision had to be endorsed by the WAPC, which then submitted the endorsed plan to the Registrar of Titles to issue certificates of title for each of the lots in the subdivision.

The facts in this case

The evidence about what happened is not in dispute and is set out below. This recital of the evidence can therefore be regarded as a recital of the facts.
On 31 October 1997, Appendix L was published and the land in Cell 9 was rezoned from 'rural' to 'urban development'. In September 2000 the Council adopted the Cell 9 ODP.
On 11 September 2000 the Council held a meeting and considered a report concerning the 'payment options and timing' for Cell 9 Infrastructure Contributions. Clause 4 of the report, adopted into the minutes of the meeting, read:
The provisions [in Appendix L] … enable the Council to require land owners to pay their full Cell Infrastructure Contribution … at the time they seek clearance for any subdivision or approval for development of their land. Clause 7.7 of Appendix L however, gives Council the discretion to vary the payment of Cell Infrastructure Contributions, on terms of deferred payment, and to take action to secure that payment.
The report therefore discussed issues of timing in relation to payments. The report also discussed options available for the Council in relation to payment of Cell Infrastructure Contributions. One option was to require full payment upon initial subdivision; another was to allow partial payment in relation to land to be subdivided or developed and payment of deferred contributions as the balance of landholding was subdivided or developed. It was recommended that the Council should resolve to require full payment upon initial subdivision, but noted that a land owner in Cell 9 had requested the committee to reconsider the recommendation, and further noted that the matter had been discussed at length by the Executive Management Committee. A resolution was then passed by Council in the following terms:
That landowners proceeding with subdivision or development within Cell 9, be advised that:
a)The payment of their total Cell Infrastructure Contribution is to be made at the time of initial subdivision or development of their land, unless the specific approval of the Council is given to vary the payment process.
After that resolution was passed, Mr Marjoram, a consulting engineer acting on behalf of the respondent, wrote a letter dated 15 July 2002 to the appellant which read:
It is proposed to develop a total of 157 lots in five stages in as short a time frame as sales will permit, but expected to take some 3-4 years. Tentative staging is shown in the enclosed plan.
The area of original lots 61, 62 and 63 north of Arthur Road and west of Bruce Road (Stages 2, 3 and 5) are of particular concern regarding payment of Scheme Infrastructure costs. Of the 86 lots in these stages some cross existing lot boundaries, as do the proposed stages.
Given the significant amount of Scheme Costs per lot, our Principals would wish to pay for the number of lots in each stage as developed.
Would you please advise if this will be acceptable to Council.
Another letter dated 26 July 2002 was sent by Mr Marjoram to the appellant in similar terms but referring this time to a proposal to develop 123 lots only on part of the land referred to in the 15 July 2002 letter.
On 5 August 2002, the requests made on behalf of the appellant were considered by Council. The Council considered a report, adopted into the minutes of a meeting, which noted that the land the subject of this request was also the subject of two separate subdivision applications, one application relating to lot 59, and the other relating to lots 61 and 63 Arthur Road and 62 and 68 Bruce Road. The report reminded the Council of the resolution which had been passed on 11 September 2000, noting that a similar request for staged payments by another person had been approved. A comment in the report read:
The provisions of the Scheme for Cell 9 enables Council to require land owners to pay their full Cell Infrastructure Contribution amounts at the time they seek clearance for any subdivision or approval for development of their land. Clause 7.7 of Appendix L of the Scheme however, gives the Council discretion to vary the payment of Cell Infrastructure Contribution in terms of deferred payment and to take action to secure that payment.
The report noted that the respondent had addressed the committee. The report also noted that the Executive Manager of Engineering Services advised that there was a 'clearance process' to be followed when creating new lots.

The Council's resolution of 19 August 2002

A resolution was then passed by the Council of the appellant on 19 August 2002 in the following terms:
1.That the applicant be advised that the request for partial payment of Cell Infrastructure Contributions for subdivision of Lot 59 Welshpool Road, Lots 61 & 63 Arthur Road, 61 and 68 Bruce Road, Wattle Grove is supported subject to the following:
a.The Cell Infrastructure Contributions per dwelling unit site together with any cost that is determined to be GST applicable be paid to the amount as determined by council at the time of clearance of the subdivision lots.
b.Costs associated with Cell Infrastructure Works for Lot 59 Welshpool Road only will be paid on clearance of Stage 1.
c.The payment for Public Open Space by the Council will only be granted on transfer of such land to the Crown, or the Shire of Kalamunda.
d.For subdivision of Lots 61 & 63 Arthur Road and 62 & 68 Bruce Road, no refund for Cell Infrastructure Work costs will be provided for by the Council in Stages 1 and 2.
e.Refund for Cell Infrastructure Work costs will only be considered at the earliest in Stage 3 clearance of lots, subject to any refund not exceeding payment of Cell Infrastructure Costs for that stage.
On 22 August 2002 the appellant wrote to Mr Marjoram in the following terms:
Please be advised that council at its ordinary meeting held on 19 August 2002 resolved that you be advised that the request for partial payment of Cell Infrastructure Contributions for subdivision of Lot 59 Welshpool Road, Lots 61 & 63 Arthur Road, 62 & 68 Bruce Road, Wattle Grove is supported subject to the following:
a.The Cell Infrastructure Contributions per dwelling unit site together with any cost that is determined to be GST applicable be paid to the amount as determined by Council at the time of clearance of the subdivision lots.
b.Costs associated with Cell Infrastructure Works for Lot 59 Welshpool Road only will be paid on clearance of Stage 1.
c.The payment for Public Open Space by the Council will only be granted on transfer of such land to the Crown, or the Shire of Kalamunda.
d.For subdivision of Lots 61 & 63 Arthur Road and 62 & 68 Bruce Road, no refund for Cell Infrastructure Work costs will be provided for by the Council in Stages 1 or 2.
e.Refund for Cell Infrastructure Work costs will only be considered at the earliest in Stage 3 clearance of lots, subject to any refund not exceeding payment of Cell Infrastructure Costs for that stage.
In regard to point a. above, the Cell Infrastructure Contribution at present is set at $7,100 (plus GST) per dwelling yield. This cost will be reviewed in October 2002 and annually thereafter. You are required to pay the figure applicable at the time that the subdivision clearance is sought.

Council resolutions of September 2002

During the period from September 2000 to September 2002, the appellant's Council passed resolutions, adopting a dollar figure per dwelling in relation to Cell Infrastructure Contributions. The important resolution was made in September 2002. Copies of this resolution were not provided to the court, but in the minutes of a meeting of Council on 20 October 2003 there was a report before the Council. It read:
The Council adopted the ODP for Cell 9, Wattle Grove in September, 2000, with Cell Infrastructure Contributions of $6,700 per potential dwelling. An annual review of the Cell Infrastructure Contributions was completed in September 2001 to give $7,100 per potential dwelling and again in September 2002 to give $8,100 per potential dwelling.
From this it may be accepted that in September 2002 a resolution was passed by Council stating that Cell Infrastructure Contributions would be $8,100 per potential dwelling.
Mr Marjoram in his affidavit sworn 6 February 2006 deposed that the Council 'resolved to adopt a revised contribution rate of $8,100 per lot to apply from 1 November 2002'. It is not in dispute that the September 2002 resolution also stated that this was to apply until 31 October 2003.

The number of lots or dwellings proposed by the respondent

It is clear from the affidavits that the respondent carried out development of other parts of the land in Cell 9 before 2003. Stage 1 was referred to in a letter from Mr Marjoram dated 3 July 2002 directed to the Shire of Kalamunda. It involved 48 lots. The subdivision of the subsequent stage, namely the stage involved in this dispute, was not expected, according to Ms Burrows (the Executive Manager of Planning and Development Services at the Shire of Kalamunda), to occur in the period from 1 November 2002 to 31 October 2003. In relation to the Dwelling Yield of land, Ms Burrows, in par 12 of her affidavit of 24 January 2006, deposed that:
The Dwelling Yield from the subdivision cannot be ascertained with certainty until the subdivision work required to satisfy conditions of subdivision has been completed. It is possible between the time of conditional approval of a proposed subdivision by the Western Australian Planning Commission ['WAPC'] and the completion of work required to satisfy conditions of subdivision approval to the point where the WAPC is prepared to indorse its approval on a Deposited Plan (a diagram or plan of subdivision) for the areas of proposed lots to be adjusted in a way that could impact upon the dwelling yield, but without there being a significant modification to the subdivision pattern or even the number of lots. Consequently in order to ensure equitable contribution to Cell Infrastructure Costs, in accordance with the purpose or objective of Part 1 of Appendix L, the Dwelling Yield essential to the calculation of a Cell Infrastructure Contribution is not calculated until the subdivision work has been carried out, and all conditions of subdivisional approval have been cleared by the Shire, and the deposited plan of the subdivision as constructed, in the form to be indorsed with the approval of the WAPC, has been lodged with the Shire.
Mr Marjoram, in his affidavit sworn 6 February 2006, referred to this paragraph and deposed:
7.I refer to the Affidavit of Susan Jane Burrows filed in these proceedings and, in particular, to paragraphs 10, 11 and 12 of that Affidavit. In the case of the subject land, Lot Yield and Dwelling Yield are one and the same. The plan submitted for approval to subdivide indicated the proposed number and size of proposed lots, being all single residential lots. Departure from the approved plan is not possible without the submission to the Western Australian Planning Commission of an amended plan and the approval of that amended plan.
8.Deposited Plans 39382 and 39383 were lodged on 31 October 2003 with the Shire of Kalamunda and it was therefore possible to calculate Cell Infrastructure Contributions on the basis of all lots being developed in accordance with the approved plan.
From this interchange it may be accepted that neither party disputed that Dwelling Yield may alter from time to time depending on the proposal for subdivision advanced by a developer. The respondent merely contended that on facts in this case, the Dwelling Yield did not alter. Whether as a matter of construction of Appendix L, 'Dwelling Yield' may alter from time to time will be considered below.

The respondent applies to the WAPC for subdivisional approval

On 4 June 2003 the respondent lodged with the WAPC the application to subdivide the land which is the subject of this dispute. A copy of the application was not provided to the court. The affidavit of Ms Burrows sworn 14 August 2006, par 4(i) and 10(b) deposes that at some stage the application was to subdivide the land into 59 lots. A copy of the application was received by the appellant on 16 June 2003. In October 2003 the appellant received a letter dated 3 October 2003 from the WAPC attaching an amended plan of subdivision which had been lodged by the respondent containing some minor amendment. A copy of this plan was not provided to this court.

The Shire's 20 October 2003 resolution

On 20 October 2003 the council of the Shire held a meeting regarding 'Review of Cell Infrastructure Contributions' and referred to estimates which would be required to purchase land for the purposes of the scheme, to the predicted versus actual costs associated with management and administration, land purchases, drainage and road services, and projections as to land costs and contributions over 2003 and 2004. Under the heading 'Number of Lots', Council minutes stated:
Subdivision plans, which were submitted over the year, have been reviewed and the predicted dwelling yield revised to reflect these plans. Overall, there has been a reduction from the predicted 1880 dwellings in September 2002 to a predicted 1808 dwellings.
The minutes also stated that:
It is expected that a number of contributions will be received at the rate of $8,100 before the adoption of the revised rate.
In accordance with the recommendation in the report, a resolution was passed by the Shire on 20 October 2003:
1.That the revised Cell 9, Cell Infrastructure Contribution of $10,000 plus GST, per potential dwelling unit, be adopted, commencing 1 November 2003.
2.That the rate for Cell Infrastructure Contributions be reviewed on a six monthly basis.

The respondent tenders a cheque

By letter dated 23 October 2003, Mr Marjoram on behalf of the respondent, wrote to the appellant in the following terms:
Attached herewith is a cheque from [the respondent] in the amount of $463,320 being payment of Cell Infrastructure Costs for the above development calculated on the basis of 52 single residential lots and including GST.
Would you please supply a tax invoice for this payment as soon as possible.
The reference to 'Cell Infrastructure Costs' was meant to be a reference to 'Cell Infrastructure Contributions'.
On 23 October 2003, Mr Marjoram spoke to Ms Burrows, the Executive Manager of Planning and Development Services at the appellant's front counter. Ms Burrows deposed in her affidavit of 24 January 2006 that Mr Marjoram handed to her the cheque and the letter and explained that he was paying the money as contribution (meaning the 'Cell Infrastructure Contributions') for the final stages of the respondent's subdivision, comprising 52 lots, as the 'Cell costs' were due to increase on 1 November from $8,100 plus GST to $10,000 plus GST. (It may be assumed that this was meant to be a reference to the resolution passed by the Council on 20 October 2003). Ms Burrows realised that the cheque represented a figure calculated at a rate of $8,100 plus GST for each of 52 lots (not 59 lots).

The Shire returns the cheque

Ms Burrows attempted to hand the cheque back to Mr Marjoram but he refused to take it. Ms Burrows sent the cheque to the appellant's solicitors Corrs Chambers Westgarth and the solicitors returned the cheque to Mr Marjoram.

The WAPC's conditional approval for subdivision

On 28 October 2003 the WAPC gave conditional approval to the respondent's subdivision application. The WAPC gave details of its conditional approval as follows:
The Commission has considered the application relating to the above described land and is prepared to approve a Diagram or Plan of Survey (Deposited Plan) in accordance with the amended plan received on 12 September 2003 once the conditions set out below have been fulfilled … In accordance with established procedures all conditions must be complied with before submission of survey documents for endorsement. … The abbreviations in brackets identify the authority or agency responsible for advising the Commission on clearance of conditions. If there are no abbreviations the Commission will clear the condition. Prior to the commencement on site of any works or the implementation of any condition in any way the subdivider should liaise with the nominated authority on the requirements it considers necessary to satisfy the condition. Advice should be obtained from the relevant authorities that the conditions have been met and a copy of that advice should be submitted with the Plan or Diagram of Survey (Deposited Plan).
The 'amended plan' was not supplied to this court. There were 23 conditions listed in the WAPC letter. Condition 6 and condition 9 to 21 had in brackets words or abbreviations identifying the appellant as the agency responsible for advising the WAPC on 'clearance' of conditions. Only one condition was relevant. It was condition 9 which read:
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.
After the 23 conditions was a heading 'Advice to applicant' and under it were numbered paragraphs. Paragraph 6 read:
With regard to condition 9, the Shire of Kalamunda advised that payment of Cell Infrastructure Costs are reviewed annually. The costs applicable are the figure adopted by the Council at the time the subdivision clearance is issued.

The respondent sends the cheque back to the Shire and the Shire returns it

On 31 October 2003, Mr Marjoram wrote to the appellant referring to the return of the cheque, and to the fact that the conditional subdivisional approval had issued by the WAPC on 28 October 2003. The letter read:
I received today a letter from Corrs Chambers Westgarth returning Rangebay Corporation cheque tendered in payment of Cell Infrastructure Costs for the 52 lots comprising the above development.
They advise that the payment is premature 'because there is, as yet, no subdivisional approval'.
Conditional subdivisional approval issued on 28 October 2003 and the relevant Diagrams 39382 and 39383 were lodged with Council earlier today with a request to clear the relevant condition of the approval.
The cheque is returned herewith.
Once again the reference to 'Cell Infrastructure Costs' should be read as a reference to 'Cell Infrastructure Contributions'. A second letter dated 31 October 2003 was signed by Mr Marjoram and sent to the appellant. It read:
Further to our letter dated 23 October enclosing a cheque for Scheme Infrastructure Costs for the above development, attached are copies of diagrams DP 39382 and 39383 showing the lots concerned.
Would you please clear condition 9 of the subdivisional approval.
The reference to 'Scheme Infrastructure Costs' should be read as 'Cell Infrastructure Contributions'.
On 21 November 2003 the appellant wrote to Mr Marjoram in the following terms:
I refer to your letter dated 31st October 2003 and enclose your cheque for $463,320.00 being payment of Cell Infrastructure Costs for the above subdivision.
Please be advised that the payment of such monies is again considered premature. In accordance with the Council resolution in regard to your request for staged payments and the applied practice and procedure for subdivision clearances, payment for the clearance of one condition is not accepted.
The reference to 'Cell Infrastructure Costs' should be read as a reference to 'Cell Infrastructure Contributions'.
The respondent then completed work on site necessary to fulfil conditions imposed by the WAPC and on 31 March 2004, the surveyor on behalf of the respondent wrote to the appellant asking for a 'clearance certificate' and enclosing two copies of the 'deposited plan' for clearance purposes.

The appellant calculates the Cell Infrastructure Contribution payable by the respondent at $520,000 plus GST

The appellant then informed the respondent that if there was to be clearance given by the Council, the Cell Infrastructure Contribution the respondent had to pay was $520,000 plus GST. The date when the Council advised that the Cell Infrastructure Contribution was $520,000 plus GST is not disclosed but it appears to have been in or about March 2004 and that will be the date referred to in these reasons. There is no dispute that if the Cell Infrastructure Contribution had not been calculated by the appellant in September 2002 or if the respondent was otherwise not 'entitled' to pay the sum of $463,320, then the sum of $520,000 plus GST was the amount of the Cell Infrastructure Contribution payable.

The parties agree that moneys should be held pending the litigation

The dispute between the parties about the correct quantum of the Cell Infrastructure Contribution was resolved on an interim basis by the parties agreeing that the appellant could keep the payment of the amount tendered by the respondent and that the respondent should pay the balance claimed by the appellant making a total of $520,000 plus GST, this being held pending the outcome of this litigation. This arrangement was without prejudice to the parties' right to argue their respective cases in this litigation.

The Shire certifies 'clearance' of conditions and the WAPC endorses subdivisional approval

On 8 April 2004 an officer on behalf of the Shire placed a stamp on the deposited plans, indicating that 'Condition No 6, 10 ‑ 20 have now been fulfilled'. It is not in dispute that this constituted 'clearance' of conditions referred to in cl 7.2(a) of Appendix L. On 28 April 2004 the WAPC endorsed its approval of the diagram or plan of survey.

The respondent commences proceedings in the Supreme Court

On 28 June 2005 the respondent issued an originating summons for a declaratory judgment contending that the Cell Infrastructure Contributions the respondent was 'obliged to pay in respect of the subdivision' was $463,320.
There were no pleadings, so it is only possible to try and detect the issues from the affidavits and his Honour's reasons. The trial judge said that the case was 'effectively an argument about the timing of the payment of the CIC' and the proper construction of the relevant provisions of Appendix L. It is clear that the proper construction of the badly drafted Appendix L is critical, but as will appear, the dispute is not about timing of payment at all. The primary issue is whether in September 2002, the Council calculated the Cell Infrastructure Contribution in relation to the respondent and if it did, whether there was any reason why it could not in March 2004 carry out a fresh calculation. The parties, or perhaps the appellant, seem to have persuaded the trial judge that the issue was about timing of payment by concentrating on the phrase 'prior to' in cl 7.2. The appellant submitted on appeal, and perhaps submitted to the trial judge, that it meant 'immediately before' clearance and that when the respondent tendered its cheque, it was not 'immediately before' clearance and that the appellant was not obliged to accept it. This perhaps led the trial judge to say that the case was 'effectively about timing'.
The appellant also advanced an alternative argument that the parties had entered into an agreement that 'the point of time at which the obligation to pay would arise' was 'at the time of clearance of the subdivision of lots' [19] ‑ [20]. The argument was that the agreement was concluded on 19 August 2002 by the resolution of Council set out above. With respect, that argument, even if resolved, would not deal with the issue about what the amount of the Cell Infrastructure Contribution should be. Nevertheless, the trial judge considered the submission.
Finally, it is possible that one or other of the parties raised the question about whether the amount tendered by the respondent was payment of an amount which satisfied condition 9 of the WAPC subdivisional approval. The trial judge's reasons do not state that the parties did raise the question, but the trial judge dealt with the topic and so the assumption must be that one or other of the parties did raise the point.

The trial judge's reasons

His Honour held that at least by 31 October 2003 when the respondent tendered its cheque for $463,320 there was an 'applicable (Cell Infrastructure Contribution) calculated by the [appellant] as required by Appendix L and expressed as the sum of $8,100 per dwelling unit' [50]. His Honour also concluded that the respondent was 'then entitled to pay the CIC and discharge its obligation in terms of Condition 9' and held that the appellant 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 [51]. By this, it may be inferred, first, that the trial judge found that in September 2002 the Council had calculated that the Cell Infrastructure Contribution payable by the respondent was the amount tendered by the respondent and secondly that the trial judge construed some part of Appendix L as having conferred a 'right' on the respondent to pay the Cell Infrastructure Contribution and an obligation on the appellant to accept the payment tendered by the respondent.
As to the meaning of the phrase 'prior to' the trial judge said it was 'relatively easy to interpret' but did not say what his 'interpretation' was and concluded on this point as follows:
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.
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. [34] ‑ [35]
His Honour also considered the appellant's argument that there was an agreement concluded by the Council's resolution passed on 19 August 2002. His Honour said:
[T]he 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.
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. [19] ‑ [20]

The following paragraphs from the trial judge's reasons record the trial judge's views about the 'structure' of Appendix L and the conclusion which is referred to at the beginning of this section of these reasons.
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 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.
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.
…
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 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.
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. [42], [43], [50], [51]

The appellant's original grounds of appeal

Ground 1 challenged the trial judge's construction of cl 7.2(a).
Ground 2 alleged that the trial judge erred in law in holding that the respondent discharged its obligation in terms of condition 9 of the conditional subdivisional approval by paying the CIC at the rate applying immediately before 1 November 2003.
Ground 3 alleged that the trial judge erred in law in holding that the evidence did not support an agreement by the Council under cl 7.7 of DPS 2 to accept payment of the respondent's CIC on terms of deferred payment.

The appellant applies for leave to add two new grounds of appeal

After the oral submissions were made and the decision reserved, the court invited the appellant to consider whether it wished to amend the grounds to add two new grounds. As a result, the appellant sought leave to add two new grounds, grounds 4 and 5, which read:
Ground 4: Calculation of Cell Infrastructure Contribution
4.1The learned Judge erred in finding, in effect, that the Council resolution of September 2002 was a calculation of the CIC in relation to the respondent.
4.2The learned Judge should have found that the Council resolution involved an exercise by the Council of the power conferred on it under clause 7.8 of Appendix L to make estimates of cell infrastructure costs that had not been finally ascertained, upon which estimates the Council was entitled, but not obliged, to rely.
Ground 5: Recalculation of Cell Infrastructure Contribution
5.Further or alternatively to Ground 4, the learned Judge erred in construing Appendix L so that, in effect:
(a)the making of the CIC estimate by the September 2002 resolution denied the Council the power to calculate or recalculate the CIC in relation to the respondent;
(b)the respondent was entitled to make payment of the amount it tendered, calculated pursuant to the estimate; and
(c)the Council was obliged to accept the amount tendered in satisfaction of the respondent's obligation to make a CIC payment.

Construction of provisions in Appendix L

It is necessary to consider a number of the provisions in Appendix L in order to deal with the primary issue which is whether the Council resolution of September 2002 was the calculation of the Cell Infrastructure Contribution in relation to the respondent, and if it was, whether there was any reason why the Council could not carry out another calculation in March 2004.

Clause 7.8 - Cell Infrastructure Costs and the calculation of Cell Infrastructure Contribution

Clause 7.8 of Appendix L provides that Council may make estimates of Cell Infrastructure Costs before those costs are finally ascertained. The Council is obliged to make such an estimate at least annually. Thus the total of Cell Infrastructure Costs is determined by Council by adding to actual costs the Council's estimates about costs not yet incurred. A change in calculation of Cell Infrastructure Costs will cause the calculation of the Cell Infrastructure Contribution in relation to an owner, to alter. It is also important to note that cl 7.8 provided that 'The Council … in calculating Cell Infrastructure Contributions may rely upon such estimates [of Cell Infrastructure Costs]'. This makes it clear by implication that it is the Council which must calculate Cell Infrastructure Contributions. It is also relevant to note that cl 7.8 does not state that the Council must carry out the calculation only once. There is nothing in Appendix L to prevent the Council, if it has calculated a Cell Infrastructure Contribution in relation to an owner, from carrying out recalculations from time to time as more information comes to hand.

Dwelling Yield

The relationship between the 'Dwelling Yield' of all the Cell 9 land and the Dwelling Yield of an owner's land is relevant as may be seen in the definition of Cell Infrastructure Contribution. The definition of 'Dwelling Yield' is set out above. The word 'permitted' appears twice in par (a) of the definition. Where it is used first, it expressly states that it is referring to land 'permitted' pursuant to Cell 9 ODP to be developed for residential purposes. When the word 'permitted' is used on the second occasion there is no reference as to whom may grant the permission. In my opinion the word 'permitted' used on the second occasion means permitted by law. When single residential lots are involved the law requires at least approval from the WAPC to create the lot. (Neither party contended otherwise. The respondent merely contended that on the facts of this case 'Dwellings' could be equated with the number of lots because all lots were to be single residential lots). It is clear that in a case such as the present the number of lots approved for subdivision by the WAPC and therefore the number of dwellings 'permitted' may vary. If the subdivision of land for single residential purposes was being carried out in stages, then the word 'permitted' where used for the second time in the definition of 'Dwelling Yield' has to be read as to allow for an estimate to be made about the likely number of dwellings which might be 'permitted', ie approved by the WAPC.

Cell Infrastructure Contribution

It is then necessary to turn to the definition of 'Cell Infrastructure Contribution'. Cell Infrastructure Contribution is 'a sum of money' and is 'in relation to an owner'. The combination of these two phrases makes it clear that there is no generic Cell Infrastructure Contribution in relation to Cell 9. As already mentioned the Council must calculate the Cell Infrastructure Contribution and it must be calculated as a sum of money in relation to each owner. The sum of money calculated may alter if it is recalculated. This will be so if Cell Infrastructure Costs alter. The Dwelling Yield of an owner's land may alter and then the relationship between the Dwelling Yield of the owner's land and the Dwelling Yield of all land in Cell 9 will alter as a result. This will also cause the Cell Infrastructure Contribution in relation to an owner to alter.

Clause 7.2

That raises a question about whether the Council is obliged to carry out a calculation of Cell Infrastructure Contribution in relation to an owner at any particular time. This, in turn, leads into a consideration of cl 7.2. It states that in the case of subdivision (which is this case) the Cell Infrastructure Contribution must be paid 'prior to' the date upon which the WAPC endorses its approval on a diagram or plan of subdivision. 'Prior to' means 'before'. However payment cannot be made until the Council calculates the Cell Infrastructure Contribution in relation to the owner who seeks to make payment.
There is nothing in cl 7 which expressly states when the calculation must be carried out by Council. In practical terms the council may not want to carry out the calculation too early because Cell Infrastructure Costs may vary. However, there is a constraint on how late the council may calculate the Cell Infrastructure Contribution. This is because, as is clear from cl 7.2(a), 'clearance' precedes WAPC endorsement of approval and so the necessary implication is that the Council must calculate the Cell Infrastructure Contribution and advise the owner of it within a reasonable time after the owner applies to the Council for clearance, providing the Council is then satisfied that relevant conditions of subdivisional approval have been fulfilled. This must be implied because cl 7.2(a) authorises the Council to withhold clearance until the owner complies with cl 7, ie until the owner pays the Cell Infrastructure Contribution.
The appellant submitted that the phrase 'prior to' in cl 7.2 meant not simply 'before' but 'immediately before' the event referred to, namely immediately before the date upon which the WAPC endorses its approval on a diagram or plan of subdivision. In my opinion the expression does not mean 'immediately before'; in context the phrase bears its ordinary meaning (see Macquarie Dictionary (4th ed, 2005)) which is 'earlier than' or 'before'. In any event though, when payment has to be made or may be made is not the real issue between the parties. The issue is about the quantum of the Cell Infrastructure Contribution, and whether it had been calculated by Council in relation to the respondent when the respondent tendered its cheque.
Finally, in relation to cl 7.2, the respondent submitted that if a Cell Infrastructure Contribution had been calculated, it conferred a 'right' on the owner to pay and an obligation on the Council to accept the payment. That was, in effect, the trial judge's construction of Appendix L. However, there is no express provision to that effect in cl 7.2 and it appears not to be necessary to imply the conferral of such a right or the imposition of such an obligation. All that is necessary to imply into cl 7.2 is that the Council must calculate the CIC in relation to the owner within a reasonable time once a request for clearance has been made by that owner, subject to the proviso mentioned above.
In summary, the Cell Infrastructure Contribution may be calculated by the Council whenever it wishes to do so, but at all times it must bear in mind the purpose of the establishment and designation of Cell 9. This was to permit the 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 development at no cost to the Council's ratepayers other than the owners of land within Cell 9. That purpose might tend to lead the Council to carry out the calculation to determine the Cell Infrastructure Contribution 'in relation to an owner' as late as possible when as much information as possible was available both as to Dwelling Yield and Cell Infrastructure Costs. However, the Council, if it carried out a calculation of Cell Infrastructure Contribution, was free to recalculate it on a later occasion, but was obliged to carry out the calculation or recalculation within a reasonable time after an owner sought clearance of all conditions, subject to the proviso mentioned above. Finally, by way of repetition, the calculation of Cell Infrastructure Contribution must be the calculation of a 'sum of money' 'in relation to an owner'.
The respondent's submission was that the resolution passed by Council in September 2002 identifying a rate of $8,100 per lot was the 'calculation' of the Cell Infrastructure Contribution payable by the respondent, that the respondent was entitled to pay $463,320 which it calculated as the Cell Infrastructure Contribution, and that the appellant was obliged to accept that sum. This was also the crux of the argument between the parties when the cheque went backwards and forwards between them. These submissions were in support of the trial judge's finding that 'there was an applicable' Cell Infrastructure Contribution calculated by the [appellant] as required by Appendix L and expressed as the sum of $8,100 per dwelling unit.

The application for leave to add grounds 4 and 5

The grounds of appeal as they existed at the commencement of the appeal, contained no ground alleging that the trial judge erred in holding that the amount of the cheque tendered was the 'applicable' Cell Infrastructure Contribution. Nor was there any ground challenging the trial judge's conclusion of law that the respondent was 'entitled' to make payment of the sum tendered by the respondent, and his conclusion that the appellant was obliged to accept payment. It was in relation to these points that the appellant applied for leave to add grounds 4 and 5.
The respondent opposed the application for the grant of leave to amend. The respondent accepted that the court has power to allow an amendment to the grounds of appeal, but referred to a number of authorities including Metwally (No 2) v University of Wollongong (1985) 59 ALJR 481, 483; Coulton v Holcombe (1986) 162 CLR 1, 7 ‑ 8; Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631, 645 and O'Brien v Komesaroff (1982) 150 CLR 310, 319, which between them make the points that generally speaking, a party is bound by the conduct of his case, that the issues between the parties are settled at trial and that a point cannot be taken for the first time on appeal if, had the point been raised earlier, the respondent might have conducted the case differently at trial.
The respondent submits that the issue in the proceedings at first instance was whether it was open to the respondent to pay the Cell Infrastructure Contribution in October 2003, with the appellant arguing that it was not open for the respondent to pay then, either because the Cell Infrastructure Contribution could not be paid earlier than immediately before all the conditions on the planning approval had been cleared, or because there had been a binding agreement not to pay the Cell Infrastructure Contribution at any earlier time. The respondent pointed out that the council resolution of September 2002 was not before the court. The respondent submitted that the proposed new ground 5 raises an issue that was not raised at trial.
This case was conducted without pleadings and despite the difficulties mentioned at the beginning of the reasons, at least the main issues between the parties can be gleaned by reading the affidavits which were filed. Affidavits filed on both sides did not confine themselves to evidence. They also contained material amounting to submissions about the view the deponents had concerning the correct construction of Appendix L. So, for example, Ms Burrows in her affidavit sworn 24 January 2006, in many places purports to explain how provisions of appendix L should be construed or how they should operate (see for example, pars 9 and 11). Mr Marjoram in turn, for example in his affidavit sworn 6 February 2006 (par 26), expressed his disagreement with the interpretation placed on a part of Appendix L by the Shire of Kalamunda.
However, what is evident from the affidavits and the trial judge's reasons, is that the parties were at least in dispute about whether or not a payment which the respondent tendered, represented the Cell Infrastructure Contribution payable by the respondent, whether the respondent was 'entitled' to make payment and whether the appellant was obliged to accept the cheque. The answer to that dispute lies in the correct construction of Appendix L. The view taken by the officers of the two parties to the litigation about the correct construction of Appendix L cannot bind this court. It is the task of the court to determine the correct construction of Appendix L.
The respondent in its written submissions in opposition to the application for leave to add grounds 4 and 5, pointed out that the minutes of the September 2002 council meeting were not before the court and that there was even uncertainty about whether the resolution was passed on 7 October 2002 or in September 2002. However, in oral submissions, senior counsel for the respondent quite correctly agreed that the date did not matter one way or the other (see appeal ts 79 for 21 October 2008) and so I will continue to refer to the resolution as one made in September 2002, although there is some evidence that it might have been on 7 October 2002. All the evidence suggested that the rate of $8,100 was a 'generic' rate, meaning that is it was not a calculation of the Cell Infrastructure Contribution 'in relation to' the respondent. Senior counsel agreed that this was so. (See appeal ts 79 for 21 October 2008). As a result, there is no further relevant evidence which could have been led in relation to the September 2002 resolution.
As a result, the issue as to the correct construction of Appendix L always having been an issue, there being no further evidence which could be led, and there being no relevant prejudice to the respondent, leave to appeal should be granted to amend the grounds of appeal to add grounds 4 and 5.
I should record that after the application for leave to add grounds 4 and 5 was heard on 21 October 2008, the respondent filed additional written submissions, dated 24 October 2008, without seeking the leave of the court to do so. That should not have happened; see Carr v Finance Corporation of Australia (1981) 147 CLR 246 , 258. However, because the disposal of this case should occur without further delay, the submissions have been taken into account.

Decision on appeal

For the reasons set out under the heading 'Construction of provisions in Appendix L', the Cell Infrastructure Contribution had to be:
(a)a sum of money;
(b)in relation to an owner; and
(c)calculated by the Council.
The September 2002 resolution did not contain a calculation carried out by Council 'in relation to the respondent' to arrive at 'a sum of money' payable by the respondent. The September 2002 resolution did not therefore set the Cell Infrastructure Contribution payable by the respondent. It was not, to use the language of the trial judge, the 'applicable' Cell Infrastructure Contribution which the respondent was entitled to pay in order to obtain clearance. The September 2002 resolution could amount to no more than information in the form of an estimate, generic to all owners of land in Cell 9, which would allow developers in the whole of Cell 9 to make their own estimates about what their own Cell Infrastructure Contribution might be when the calculation was carried out.

Furthermore, the figure of $463,320 which was the amount of the cheque tendered by the respondent, was calculated not by the Council, but by the respondent, by reference to the September 2002 resolution. Appendix L did not confer on an owner the right to make the calculation. That was the task of the Council, implied by cl 7.8. The amount tendered was not therefore the Cell Infrastructure Contribution 'in relation to' the respondent.

Ground 1

In my opinion ground 1 raises a point which does not assist in determining the real issue between the parties. The appellant argued that the word 'prior' in cl 7.2 meant 'immediately before'. The submission must be dismissed, but even if it did bear the meaning contended for by the appellant, it does not bear on whether the amount tendered by the respondent was the Cell Infrastructure Contribution calculated by the appellant, and would not help decide whether or not the declaration should have been made. The meaning of the word 'prior' is dealt with above under the heading 'Construction of provisions in Appendix L'.
Ground 1 is dismissed.

Ground 2

By ground 2 the appellant submits that the trial judge erred in law in concluding that the respondent was entitled to pay the amount it tendered and to 'discharge its obligation in terms of condition 9' of the subdivisional approval. In view of the conclusions on the amended grounds, the appellant's submission is correct. However, ground 2 should be dismissed because it does not bear on whether or not the declaration made by the trial judge should be set aside.

Ground 3

Ground 3 must be dismissed. Clause 7.7 authorises the Council to agree to accept payment of a Cell Infrastructure Contribution on terms as

deferred payment. The parties agreed that the Cell Infrastructure Cost could be paid at the time of clearance but that was not an agreement to defer payment of a Cell Infrastructure Contribution. The discussion between the appellant and respondent in August 2002 leading to the 19 August 2002 resolution was whether the Cell Infrastructure Contribution had to be calculated and paid in relation to the whole of the respondent's land to be subdivided or only as subdivision occurred. The parties were not then discussing whether payment of a Cell Infrastructure Contribution in relation to the respondent should be deferred or not.

Ground 4

The trial judge erred in holding that the amount in the cheque tendered was the 'applicable' Cell Infrastructure Contribution. As explained above, the calculation of Cell Infrastructure Contribution must be a calculation carried out by the Council 'in relation' to an owner. The September 2002 resolution was not a calculation of Cell Infrastructure Contribution in relation to the respondent. As a result, ground 4.1 should be upheld. It is not necessary to consider ground 4.2.

Ground 5

The Cell Infrastructure Contribution not having been calculated in relation to the appellant in the September 2002 resolution, it follows that the respondent was not 'entitled' to make payment of the amount tendered and Council was not obliged to accept the amount tendered.
Grounds 5(b) and (c) should be upheld. It is not necessary to decide ground 5(a).

Result on appeal

Ground 4.1 and ground 5(b) and (c) having been upheld, the appeal should be allowed, the judgment set aside, and in lieu there should be an order that the respondent's originating summons be dismissed.
BUSS JA: I agree with Pullin JA.
NEWNES AJA: I agree with Pullin JA.