Stream Focus Pty Ltd v City of Armadale
[2018] WASC 13
•18 JANUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: STREAM FOCUS PTY LTD -v- CITY OF ARMADALE [2018] WASC 13
CORAM: SMITH AJ
HEARD: 26 OCTOBER 2017
DELIVERED : 18 JANUARY 2018
FILE NO/S: GDA 5 of 2017
BETWEEN: STREAM FOCUS PTY LTD
Appellant
AND
CITY OF ARMADALE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MS K WHITNEY (MEMBER)
Citation :STREAM FOCUS PTY LTD and CITY OF ARMADALE [2017] WASAT 64
File No :DR 302 of 2016
Catchwords:
Planning and development - Power of responsible authority to impose further conditions pursuant to Planning and Development Act 2005 (WA) s 170(3)
SAT jurisdiction - Power to vary decision where original decision ultra vires - Nature of SAT review
Legislation:
Planning and Development Act 2005 (WA), s 135, s 142, s 143, s 158, s 168, s 169, s 170
State Administrative Tribunal Act 2004 (WA), s 9, s 27, s 29, s 31, s 32, s 105
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P G McGowan & Ms L E Rowley
Respondent: Mr C A Slarke
Solicitors:
Appellant: Rowley Legal
Respondent: McLeods
Case(s) referred to in judgment(s):
Director General of Department of Transport v McKenzie [2016] WASCA 147
LS v Mental Health Review Board [2013] WASCA 128
SMITH AJ:
The appeal
This is an appeal against a decision made by the State Administrative Tribunal (the Tribunal) to vary conditions imposed, on Stream Focus Pty Ltd (Stream Focus) as a person subdividing land, by the City of Armadale (the City) as the responsible authority, pursuant to a notice given under s 170(3) of the Planning and Development Act 2005 (WA) (the Planning Act).
An appeal against a decision of the Tribunal, other than vocational matters, can only be brought on a question of law and only if the court grants leave: State Administrative Tribunal Act 2004 (WA) s 105 (SAT Act).
Stream Focus appeals against the decision of the Tribunal. For the reasons set out below, in my view, the decision of the Tribunal is clearly correct and leave to appeal should be refused.
Background
Stream Focus is the registered proprietor of Lot 3, Ninth Road, Brookdale, being the entirety of Certificate of Title, Volume 1412, Folio 711 (the land). The land is within the municipal boundaries of the City.
On 15 September 2016, the Western Australian Planning Commission (the Commission) issued to Stream Focus an approval to subdivide the land into 79 residential lots and one public open space reserve. The approval was given in a document titled 'Approval Subject To Condition(s) Freehold (Green Title) Subdivision'.
Condition 1 of the approval provided as follows:
1.Engineering drawings and specifications are to be submitted, approved, and subdivisional works undertaken in accordance with the approved plan of subdivision, engineering drawings and specifications, to ensure that those lots not fronting an existing road are provided with frontage to a constructed road(s) connected by a constructed road(s) to the local road system and such road(s) are constructed and drained at the landowner/applicant's cost.
As an alternative, and subject to the agreement of the Local Government the Western Australian Planning Commission (WAPC) is prepared to accept the landowner/applicant paying to the local government the cost of such road works as estimated by the local government and the local government providing formal assurance to the WAPC confirming that the works will be completed within a reasonable period as agreed by the WAPC. (Local Government)
Condition 1 provided for the construction and drainage of roads in the subdivision to be connected by a constructed road or roads to the local road system and provided Stream Focus with two choices regarding who performed the works. Stream Focus could carry out, or cause to have constructed, the works at its own cost. Alternatively, Stream Focus could pay the City to carry out the works. These two choices reflect the options conferred upon a person who is subdividing land by operation of s 158 of the Planning Act. Section 158 provides:
(1)Where a person who is subdividing land is required under this Part to construct and drain roads or construct artificial waterways shown on the plan of subdivision that person may ‑
(a)carry out or cause to be carried out the construction and drainage at his or her own expense; or
(b)arrange for the local government to carry out the work on behalf, and at the cost and expense, of that person.
(2)Where the person does not make the arrangement with the local government, that person is to pay to the local government, on demand, an amount (calculated under subsection (3)) to cover the reasonable costs of the local government in supervising the construction and drainage.
(3)For the purposes of subsection (2) the amount is to be calculated as follows ‑
(a)where the person has not engaged a consulting engineer and clerk of works to design and supervise the construction and drainage, the amount is to be 3% of the cost of the construction and drainage as estimated by the local government;
(b)where the person has engaged a consulting engineer and clerk of works to design and supervise the construction and drainage, the amount is to be 1½% of the cost of the construction and drainage as estimated by the local government.
(4)The local government may require the person to employ a consulting engineer and clerk of works to design and supervise the construction and drainage and that person, when required to do so by the local government, is to carry out the requirement.
Conditions 2, 3, 11 and 13 of the approval required engineering drawings and specifications to be submitted and works undertaken in accordance with the approved plan of subdivision to the satisfaction of the Commission with written advice to be provided by the local Government (the City) confirming that the conditions had been fulfilled. Stream Focus opted to carry out, or cause to be carried out, the construction and drainage of the roads itself.
Before construction commenced the drawings and specifications of the proposed roads were provided by Stream Focus to the City (as the responsible authority) as required by s 170(1) of the Planning Act.
Pursuant to s 170(3) of the Planning Act:
(3)The responsible authority may by written notice require the person subdividing the land ‑
(a)to amend the drawings or specifications or both; and
(b)to comply with such further conditions as the responsible authority thinks fit to impose in respect of the proposed road or waterway,
for the purpose of ensuring that the construction and drainage of the road or construction of the artificial waterway is consistent with the approval of the Commission.
By letter dated 21 July 2016 (but which the parties agree was incorrectly dated and should have read 21 November 2016) the City gave notice pursuant to s 170(3)(a) to the agent for Stream Focus. The notice stated that the submission for the proposed subdivision of the land had been checked against the City's specifications and was now considered acceptable. The approval given by the City to Stream Focus was an approval to commence construction of the roads and drainage in accordance with the drawings listed in the notice. The notice contained five conditions. Conditions 4 and 5 were as follows:
4Payment of a 5% twelve‑month maintenance bond on all works in the development appertaining to the Council before survey release
5A Certificate of Compliance for all civil works is to be completed and returned to the City of Armadale at Practical Completion Inspection Please refer to the City's website to obtain the Certificate of Compliance
Stream Focus formed the opinion conditions 4 and 5 should be deleted on grounds the conditions went beyond the scope and power of the City to impose pursuant to s 170(3) of the Planning Act.
Aggrieved by conditions 4 and 5, Stream Focus made an application for review to the Tribunal. Section 170(5) of the Planning Act creates a right of review in respect of a requirement of the responsible authority made under s 170(3) to the Tribunal, in accordance with pt 14 of the Planning Act.
Stream Focus also sought review of other conditions imposed by the City in an earlier notice. The matter was referred to mediation and reconsidered by the City of Armadale, pursuant to s 31 of the SAT Act, in November 2016. However, the parties remained in dispute about conditions 4 and 5 of the notice given on 21 November 2016.
By consent, orders were made by the Tribunal on 13 December 2016 stating the following issues were to be determined by the Tribunal:
(a)whether condition 4 of the notice is within the power of the City to impose; and
(b)whether condition 5 of the notice is within the power of the City to impose.
The order also provided that the matter was listed for a 'final hearing' to commence on 15 February 2017.
The City's submissions filed in the Tribunal on 20 January 2017 conceded that aspects of conditions 4 and 5 were outside its power to impose. That was because both conditions appeared to impose conditions on all works, not just those arising from the construction and drainage of roads. The City claimed, however, that this was not the intention of conditions 4 and 5 and that both conditions were capable of minor variation to rectify this. The City submitted that the Tribunal should vary the decision under review by substituting the following conditions for conditions 4 and 5 (referred to in reasons for decision of the Tribunal as the proposed varied conditions, or proposed varied conditions 4 and 5 (PVC)):
Condition 4: A defects liability period of 12 months shall apply to all works in the subdivision relating to the construction of roads and artificial waterways. A defects liability bond, equal to 5% of the final contract cost for the construction of roads and drainage, shall be paid to the City prior to the issue of practical completion. The City may call on the bond after practical completion of those works for the purpose of repairing any defects in those works.
Condition 5: A Certificate of Compliance for all civil works relating to the construction and drainage of roads and artificial waterways in the subdivision is to be completed and returned to the City of Armadale at Practical Completion Inspection.
PVC 4 requires payment of a defects liability bond and sets a defects liability period of 12 months.
At the hearing before the Tribunal, on 15 February 2007, an argument was put on behalf of Stream Focus that the hearing was intended to proceed only on the preliminary issue identified in the orders made by the Tribunal on 13 December 2016, that is, whether conditions 4 and 5 were within the power of the City to impose.
The Tribunal found that:
(a)there was nothing in the documents which suggested that the parties sought to have the matter dealt with as a preliminary issue;
(b)the matter was listed for a final determination on the merits;
(c)the orders made on 13 December 2016 did not prevent the Tribunal from considering any other matters relevant to determining the correct and preferable decision in all the circumstances and that s 9(a) and s 32(7)(a) of the SAT Act require the Tribunal to do so within the bounds of procedural fairness;
(d)its jurisdiction derives from the enabling legislation (the Planning Act) and the SAT Act, and the purpose of a review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) SAT Act;
(e)upon finding that conditions 4 and 5 were not within the power of the respondent to impose, the Tribunal was required to consider what would be the correct and preferable decision in all the circumstances; and
(f)options under s 29(3) of the SAT Act included varying the notice to delete conditions 4 and 5 (as proposed by Stream Focus), varying the notice as per the proposed varied conditions (as proposed by the City), or setting aside the decision and either substituting its own decision, or sending the matter back to the City for reconsideration.
After hearing from the parties and considering all the arguments put on their behalf, the Tribunal found that the power of the City to impose further conditions pursuant to s 170(3)(b) of the Planning Act necessarily are conditions that are 'in addition to' those imposed by the Commission, pursuant to s 143(1) of the Planning Act.
After considering the purpose of PVC 4 and PVC 5, the Tribunal found the amended conditions were for the purpose of ensuring that the construction and drainage of the roads was consistent with the approval of the Commission, as required by s 170(3) of the Planning Act.
The grounds of appeal
Stream Focus relies upon four grounds of appeal. These are as follows:
1.In accepting that the original conditions 4 and 5 were beyond the power of the Respondent the Tribunal erred in law in proceeding to impose PVC 4 and 5 when the Tribunal had no power so to do.
2.In determining that PVC 4 and 5 should be substituted for the original conditions 4 and 5 the Tribunal by doing so exhausted its powers under s 29(5) and (7) State Administrative Tribunal Act (SAT Act) and was not as a matter of law able to proceed to conduct a further review. In doing so and in seeking to act under s 27(2) SAT Act the Tribunal erred in law.
IN THE ALTERNATIVE
3.The Tribunal erred in law in finding that PVC 4 fell within the purpose required under s 170(3) Planning and Development Act 2005 (WA) when the condition did not relate to and thus was in addition to and not consistent with the approval of the Western Australian Planning commission of 15 September 2016.
4.The Tribunal erred in law in finding that PVC 5 fell within the purpose required under s 170(3) Planning and Development Act 2005 (WA) when the condition did not relate to and thus was in addition to and not consistent with the approval of the Western Australian Planning Commission of 15 September 2016.
and in each of alternative grounds 3 and 4 the Tribunal should have found that PVC 4 and PVC 5 were not for the required purpose and therefore beyond power.
Stream Focus' submissions - grounds 1 and 2
The point sought to be put in grounds 1 and 2 of the appeal is that the Tribunal, after reviewing the decision made by the City, determined that conditions 4 and 5 were outside the power of the council to impose. It then reviewed the decision again by determining that PVC 4 and PVC 5 should stand in place of the original conditions 4 and 5. In doing so, it is said that the Tribunal exceeded the powers conferred by s 29 of the SAT Act.
Section 29 of the SAT Act provides:
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may ‑
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and ‑
(i)substitute its own decision; or
(ii)send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
(4)The fact that a decision is made on reconsideration as required under subsection (3)(c)(ii), does not prevent the decision from being open to review by the Tribunal.
(5)The decision‑maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision‑maker's decision ‑
(a)is to be regarded as, and given effect as, a decision of the decision‑maker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
(6)Without limiting subsection (5)(a), the decision‑maker has power to do anything necessary to implement the Tribunal's decision.
(7)Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decision‑maker.
(8)Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal's decision.
(9)To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision‑maker.
The nature of review proceedings before the Tribunal is expressly prescribed to be by way of a rehearing de novo. Section 27 of the SAT Act provides:
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision‑maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
Stream Focus argues that the Tribunal decided to set aside the decision under review, namely original conditions 4 and 5 and put in place the PVC 4 and PVC 5 before it decided whether or not the imposition of the amended conditions was correct and preferable. This course of action is said not to be contemplated by s 29(3) of the SAT Act. By doing so, it is said the Tribunal reviewed the original decision again, contrary to the express restriction, in s 29(7) of the SAT Act, on its power to review.
It is said that:
(a)the Tribunal ought to have allowed the application for review by deleting conditions 4 and 5 from the 21 November 2016 notice as the Tribunal proceeded on the basis that the original conditions 4 and 5 were beyond power;
(b)the application to review was solely confined to the issue whether the conditions were beyond power. As a result of the concession made by the City, the application had to be allowed;
(c)once the Tribunal had made the decision that the original conditions were beyond power the Tribunal was functus officio;
(d)the Tribunal erroneously regarded s 27(2) of the SAT Act as the source of power to deal with the conditions as if they were within power;
(e)as the decision‑maker (the City) did not have the power to impose the original conditions then neither did the Tribunal; and
(f)the fact that a hearing may be a hearing de novo does not confer power. It simply prescribes the way a hearing is to proceed.
The merits of grounds 1 and 2
With respect, the argument put on behalf of Stream Focus is misconceived. The Tribunal is expressly conferred with jurisdiction to deal with a matter as it stands in the shoes of the original decision‑maker, as if the decision‑maker has yet to make a decision. The effect of its power of review to remake the decision made by the original decision‑maker. Unless the matter is sent back to the original decision‑maker, the decision of the Tribunal is to be regarded as, and given effect to as, the original decision made: SAT Act s 29(5).
As counsel for the City points out, the review jurisdiction of the Tribunal is not judicial review and the purpose of review by the Tribunal is not to search for legal error.
Whether the original decision‑maker has the power to revisit or amend the original decision is irrelevant. The express power conferred upon the Tribunal is to do exactly that. This was made plain by Murphy JA when his Honour comprehensively reviewed the powers of the Tribunal in the exercise of its review jurisdiction in LS v Mental Health Review Board [2013] WASCA 128. At [91] ‑ [94] his Honour said:
Section 27(1) of the SAT Act refers to a hearing 'de novo'. A hearing de novo 'involves the exercise of the original jurisdiction and the "informant or complainant starts again and has to make out his case and call his witnesses"': Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 124; Builders Licensing Board v Sperway Constructions (Syd) Pty Limited [1976] HCA 62; (1976) 135 CLR 616, 620. It means that a matter is heard afresh and a decision is given on the material presented at the hearing. The body undertaking the review is required to exercise its powers whether or not there was an error by the original decision-maker: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] - [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [22] - [23]. By the nature of the review, the Tribunal is commonly said to be placed 'in the shoes of' the original decision-maker: Minister for Immigration and Ethnic Affairs v Pochi [1986] FCA 85; (1980) 44 FLR 41, 46; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 [40]. It is also commonly referred to as a 'merits review': Shire of Augusta‑Margaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55 [72].
The reference to 'correct and preferable' in s 27(2) recognises that in some cases, particularly where an exercise of discretion is involved, more than one decision may correctly be made, and the role of the Tribunal in such a case is to make the decision that is preferable: Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 [29]; Shi v Migration Agents Registration Authority [140].
By s 27(2), the correct and preferable decision is to be made by the Tribunal 'at the time of the decision upon the review'. This has been interpreted as referring to the time of the Tribunal's decision: Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60; (2007) 51 SR (WA) 266 [24] (Chaney J). The appellant did not contend otherwise in this appeal, and no reason was advanced to doubt the correctness of that conclusion. I should add that in my view s 29(5)(b) of the SAT Act does not compel a different conclusion. In Shi v Migration Agents Registration Authority, the legislation under consideration, the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) contained a provision, s 43(6), which was similar to s 29(5)(b) of the SAT Act. The AAT Act did not contain a provision in terms of s 27(2) of the SAT Act. Nevertheless, the court held that the relevant tribunal was required to give attention to the state of affairs existing at the date of its decision, and was not confined to the circumstances existing at the date of the decision under review.
Section 29(2) of the SAT Act allows for the possibility that the powers of the Tribunal in the exercise of its jurisdiction may be broader than those of the original decision-maker. Whether they are or not depends upon there being some other source of power either in the SAT Act or in the enabling Act: Middlecoat v Commissioner of Police [2012] WASC 309 [32]. Subject to that matter, the task of the Tribunal is, by its nature, to 'do over again' what the original decision-maker did: cf Shi v Migration Agents Registration Authority [100].
Grounds 3 and 4
(a) Submissions put on behalf of Stream Focus
Ground 3 and ground 4 both raise the same issue. An argument is put in both grounds that the Tribunal erred in law in finding that each of the amended conditions fell within the purpose required under s 170(3) of the Planning Act, when each condition did not relate to, was in addition to, and was not consistent with the approval of the Commission.
It is pointed out on behalf of Stream Focus that:
(a)s 158(2) relevantly provides that where a person who is subdividing land carries out, or calls to be carried out, the construction and drainage at his or her expense they are to pay the reasonable costs of the local government in supervising the construction and drainage pursuant to the formula provided for in s 158(3) of the Planning Act;
(b)roads are generally vested in the local authority for the purpose of care, control and management; and
(c)pursuant to s 168(2) of the Planning Act, and because lots created as a result of a subdivision are required to front roads, the relationship between the Commission and the local authority is addressed in s 170 of the Planning Act.
It is argued that the relevant condition of the approval to which PVC 4 and PVC 5 relates by way of purpose, is condition 1 of the approval of the Commission, namely, 'those lots not fronting an existing road are [to be] provided with frontage to a constructed road(s) connected by a constructed road(s) to the local road system'. It is said that the conditions of approval do not require, provide for, or stipulate the imposition of any continuing obligations beyond the construction of roads in accordance with the plans, drawings and specifications.
Stream Focus contends that it is of importance that compliance with the conditions of the subdivision approval is the only means by which (upon clearance of those conditions) titles are issued to the lots created by the approved subdivisional plan. In other words, it is said, compliance with the conditions imposed by the Commission is the means to achieve the delivery of titles to proposed lots. If the conditions of the approval are not deemed to be satisfied, then the new titles will not issue and the purpose of the subdivisional application will have failed.
Understood in this context, Stream Focus contends the only role of the City, as the responsible authority identified within the approval of the Commission, is as a party from which the Commission will take advice as to when the conditions of the approval are met which enables 'clearance' of all conditions leads to the issuance of titles for the lots so created. It is said to follow that s 170(3) of the Planning Act is merely facilitatory. In particular, the power conferred by s 170(3) enables the City as the responsible authority to advise the Commission to better carry into effect the purpose captured by the roadwork and waterway conditions of the Commission's approval to subdivide the land.
It is pointed out that the need for the preparation of plans, specifications and drawings to a certain standard is necessarily an integral part of what will be required to enable roads to be constructed to an acceptable standard and that the supervision of the work and the ultimate confirmation that the roads have been constructed to an adequate standard lies in the hands of the local authority.
Thus, it is said that whilst the City does have the power to impose additional conditions pursuant to s 170(3)(b) of the Planning Act, this power must be read down in the context of s 170(3)(a) which focusses on the amendment of drawings and specifications, if consistent with the approval of the Commission.
If s 170(3)(a) is construed in this way Stream Focus says that PVC 4 and PVC 5 go significantly beyond the purpose of 'ensuring that the construction of the road is consistent with the approval of the Commission'. It points out there is nothing in the approval of the Commission that goes to the subject matter of PVC 4 of PVC 5. In particular, there is nothing in the conditions imposed by the Commission that speaks of bonds or defect periods, nor is there anything in the approval of the Commission requiring a certificate of compliance.
It is said that it is in error to have regard to the fact that there is no contract between Stream Focus and the City to construct the roads which will eventually fall within the City's care, control and management. Further, it is in error to find as the Tribunal did that the City seeks to impose obligations on Stream Focus via PVC 4 and PVC 5 to achieve an outcome that is similar to a contractual relationship.
Stream Focus also point out that a supervisory role is created by s 158(3) of the Planning Act whereby for a fee a local government authority is to engage a consulting engineer and clerk of works to design and supervise construction and drainage or to pay a lesser fee to supervise a person engaged by the person who is subdividing land as a consulting engineer and clerk of works.
It is argued that the local government authority having collected a fee to carry out such a function, there is no room in the interpretation of the Planning Act for the possibility that the consulting engineer and clerk of works will not perform those duties adequately or that the City will fail to notice any errors on the part of the consulting engineer and clerk of works or, most importantly, that the conditions of the approval may be used as a catchall for any perceived or real inadequacies in these or any other statutory provisions.
(b) Consideration of the power conferred by s 170(3) of the Planning Act
Grounds 3 and 4 of the appeal purport to raise preconditions for the exercise of the power in s 170(3)(b) of the Planning Act which in my respectful opinion do not arise in the express provisions of the Planning Act.
Section 170(3) of the Planning Act does not confer on a responsible authority power to make conditions that 'relate to' the approval of the Commission. Of importance, s 170(3) does not restrict the power to make conditions that are not additional to the subject matter of conditions provided for in the subdivision approval of the Commission.
The proper approach to statutory construction is purposive. The general principles that apply to the construction of a statute were summarised by Buss P in Director General of Department of Transport v McKenzie [2016] WASCA 147 wherein his Honour observed at [45] ‑ [47]:
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].'
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The difficulty with the argument is that the Commission by s 135 of the Planning Act is the sole authority for the grant of approval for subdivision of land in this State and for the imposition of conditions upon such approvals is that it ignores the effect of s 170(3)(b) of the Planning Act. Whilst the Commission is the sole authority to grant approval to subdivide land, its discretion to impose conditions that attach to an approval is not exclusive.
The preconditions for the exercise of the power conferred by s 170(3)(b) are that the conditions are to be 'for the purpose of' ensuring that the construction and drainage of the road or construction of the artificial waterway is 'consistent with' the approval of the Commission.
Also of importance is that the conditions imposed pursuant to s 170(3)(b) are to be 'further conditions'. The use of the word 'further' connotes conditions that are, or can be, additional conditions to the terms and conditions of the approval of the Commission.
The ordinary meaning of 'consistent' is agreeing or accordant; compatible; not self‑opposed or self‑contradictory: Macquarie Dictionary Online. 'Consistent with' does not mean to implement, or require a causal connection between, a further condition imposed by the responsible authority pursuant to s 170(3)(b) and the conditions of the approval.
Providing the further (additional) conditions imposed under s 170(3)(b) are not incompatible with, inconsistent with, or contrary to any term or condition of the approval and providing the further conditions are for the requisite purpose, that is, for the purpose of ensuring the construction and drainage of the road or construction of the artificial waterway are consistent with the approval, such further conditions are within power.
Whether a further condition imposed by a responsible authority is for the requisite purpose requires an assessment of the terms of the further conditions, together with the terms and conditions of the Commission's approval and the powers conferred and the obligations imposed on a person who seeks to subdivide and the local authority by the scheme of pt 10 of the Planning Act. In particular, an assessment of 'consistency' between the further conditions imposed by the responsible authority and the terms and conditions of the approval requires an assessment as to matters of fact having regard to the fact that a person who is has approval to subdivide land has elected to carry out or cause to carry out the construction of the works and statutory responsibilities of the responsible authority to supervise the works and to ultimately be responsible for the care, control and management of the roads once the construction of the subdivision is complete.
I do not agree that the power conferred by s 170(3)(b) is to be read down by the operative effect of s 170(3)(a). There is no reason to read down or constrain the power of the responsible authority to impose further conditions made for the specified purpose. The subject matter conferred by s 170(3)(a) is different to the subject matter to be considered in s 170(3)(b). Section 170(3)(a) is a power to require the person subdividing the land to amend the drawings and/or specifications, whereas s 170(3)(b) confers power to require the person subdividing the land to comply with conditions that are additional to the terms and conditions of the approval of the Commission.
Further, there is no intention expressed in s 170(3) that requires the powers conferred in s 170(3)(a) and s 170(3)(b) to be read together. To do so would render the power conferred in s 170(3)(b) ineffective, as s 170(3)(a) is a power only to amend drawings and specifications for the specified purpose, whereas s 170(3)(b) is a broad power to impose further conditions for the specified purpose.
Whilst it may the case that the Commission relies upon written advice from a responsible authority as a 'clearance authority' or 'clearing authority' as to whether the conditions of the Commission approval have been fulfilled, whether the terms and conditions of approval will or will not be fulfilled is not relevant to the question whether a responsible authority can impose further conditions under s 170(3)(b) of the Planning Act.
The statutory scheme of the subdivision of land provided for in pt 10 of the Planning Act is that local government authorities are consulted about and are entitled to make recommendations about a plan of subdivision prior to the approval of the plan by the Commission: s 142. The Commission is required to consider any objections or recommendations by the local government authority when dealing with a plan of subdivision: s 143.
A local government authority becomes responsible for the care, control and management of the roads in a completed subdivision: s 168(2). The Commission by notice published in The Gazette fixes minimum standards of construction with respects to roads and artificial waterways to be constructed on the proposed subdivision: s 169.
As the Tribunal correctly observed, there is no contractual relationship between a local government authority and a person who has approval from the Commission to subdivide land. In circumstances where the local government has by operation of s 158(2) a supervisory role and will have care, control and management of these roads by operation of s 168(2), the local government as a responsible authority under s 170 has a proper interest in ensuring that roads and artificial waterways are constructed and drained in accordance with the minimum standards applicable to the construction of roads.
Whilst a local government authority does not determine the minimum standards of construction of roads and waterways, the local government has a supervisory role under s 158(2) if the person carrying out the subdivision carries out, or causes to carry out, the construction and drainage at his or her own expense. The level of supervision by the local government authority is higher in the event that the person subdividing the land does not engage a consulting engineer and clerk of works to design and supervise the construction and drainage. In such a case 3% of the cost of the construction and drainage as estimated by the local government is required to be paid to the local government authority. Where a person does engage a consulting engineer to design and supervise the construction and drainage 1.5% of the cost of the construction and drainage as estimated by the local government is required to be paid to the local government.
However, the Tribunal observed the supervisory role of a local government over these works is in the nature of oversight only. It found supervision of the works would not result in the level of knowledge necessary to satisfy the City that the roads are constructed and drained to an adequate standard. Stream Focus' argument that supervisory role is not limited in nature, that the purpose of the statutory power conferred on the City to supervise is to ensure errors will be noticed, does not address the finding found by the Tribunal that latent defects in the works may only emerge after the works are completed and the roads are in use. When regard is had to that finding and the fact that condition 1 of the approval of the Commission requires Stream Focus to construct and drain the roads to an adequate standard wholly at its cost, it cannot be maintained that the Tribunal erred in finding the City does not have power to impose further conditions pursuant to s 170(3)(b) that met the objective of ensuring that Stream Focus, rather than the City, bears the costs of the roads being constructed and drained to an adequate standard.
Thus, the Tribunal correctly found that part of that proper interest is an interest in ensuring that any latent defects, in the roads that the City will be responsible for in the future, that emerge within a reasonable period after the construction of the road is complete, are rectified at the cost of the subdivider.
It cannot be said that the terms of PVC 4 or PVC 5 are incompatible with ensuring that the construction and drainage of the roads and artificial waterways are consistent with the terms and conditions of the approval of the Commission.
To the contrary, it is patently clear that the Tribunal did not err in finding that PVC 4 and PVC 5 can properly be characterised as further conditions for the purpose of ensuring the construction and drainage of the roads and artificial waterways are consistent with the approval of the Commission.
PVC 4 and PVC 5 require legitimate steps to be taken to ensure the road works are completed to an adequate standard and in accordance with the approved drawings and specifications.
Conclusion
Because the Tribunal was clearly correct in its decision to vary conditions 4 and 5, leave to appeal will be refused and the appeal will therefore be dismissed.
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