Tah Land Pty Ltd v Western Australian Planning Commission [No 3] - [2023] WASC 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   TAH LAND PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [No 3] [2023] WASC 35
CORAM:   SMITH J
HEARD:   1 FEBRUARY 2023
DELIVERED          :   17 FEBRUARY 2023
FILE NO/S:   CIV 1069 of 2022
BETWEEN:   TAH LAND PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
First Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Second Respondent

Catchwords:

Administrative law - Judicial review - Compulsory acquisition of land - Planning and Development Act 2005 (WA) - Taking of land for the purposes of a planning scheme - Whether land owned by the applicant taken for the purpose of and consistent with the Metropolitan Region Scheme

Administrative law - Judicial review - Legal unreasonableness - Outcome unreasonableness - Whether decision to take land owned by the applicant lacks an evident and intelligible justification - Whether it was open on the material before the Western Australian Planning Commission to accept an assumption that the reserved land needed to be acquired immediately

Administrative law - Procedural fairness conditions a discretionary administrative power - Vice regal powers - Statutory construction - Clear intention required to abrogate the implied condition - Power of Governor in s 161(1) of the Planning and Development Act 2005 (WA) a power to consent to a decision by the Commission not a power to review - No right of a landowner to object to the taking of reserved land prior to the Governor providing consent

Legislation:

Planning and Development Act 2005 (WA)
Land Administration Act 1997 (WA)
COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	M O'Meara SC & M C Hotchkin
First Respondent	:	C Bydder SC & J Misso
Second Respondent	:	C Bydder SC & J Misso

Solicitors:

Applicant	:	Hotchkin Hanly
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office

Cases referred to in decision:

Annetts v McCann (1990) 170 CLR 596
Banks v Transport Regulation Board [1968] HCA 23; (1968) 119 CLR 222
CAR 15 v Minister for Immigration and Border Protection [2019] FCAFC 155
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 325
City of Wanneroo v Tah Land Pty Ltd [2020] WASC 249
City of Wanneroo v Tah Land Pty Ltd [2022] WASCA 53
Clissold v Perry (1904) 1 CLR 363
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Humich Nominees Pty Ltd v Commissioner of Main Roads [2020] WASCA 175
Hunter v Minister for Planning [2012] WASC 247
Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409
Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR; [2011] HCA 1; (2011) 241 CLR 594
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Sanders v City of South Perth [2019] WASC 226
South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378
Thompson v Randwick Corporation (1950) 81 CLR 87
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145

Table of Contents

1.0 The application and the result

2.0 Background

2.1 The history of the acquisition of the Intersection Land

2.2 The Intersection Land is reserved by an amendment to the Metropolitan Region Scheme in 1994

2.3 Tah Land obtains development approval in 2003 to develop the Intersection Land to expire on 30 April 2021

2.4 Tah Land makes a second application for development approval of the Intersection Land in December 2019 which is refused

2.5 Tah Land made an application in March 2020 for compensation for injurious affection, and the Commission makes the First Taking Order in May 2021

2.6 The Commission makes the Taking Order the subject of this review application

3.0 The Taking Order

4.0 The issues raised in the grounds of review – whether there was a lack of validating purpose and whether the Taking Order was legally unreasonable

5.0 Relevant Statutory provisions of the scheme to take reserved land

6.0 The reasons why the Commission recommended to the Governor that the Intersection Land be taken

6.1 The findings of fact that Tah Land says that can be drawn from the Main Roads documents

6.2 The evidence of matters known by the Commission in respect of the intentions and plans of Main Roads in respect of the intersection at the time of the making of the Taking Order

6.3 Internal correspondence and other documents between officers of Main Roads, their consultants and adjoining landowners and tenants about plans for the design, preconstruction activities and investigations

6.4 The relevant provisions of the policies of Main Roads and the Commission that apply to the acquisition of land

7.0 Onus – Judicial review

8.0 Taking land for the purposes of a planning scheme

8.1 General principles

8.2 The power of the Commission to take land

8.3 Was the compulsory acquisition of the Intersection Land not for the purpose of the Metropolitan Region Scheme?

9.0 Legal unreasonableness

9.1 General principles

9.2 Was the decision to take the Intersection Land legally unreasonable?

9.2.1 The issues raised by the parties

9.2.2 Other relevant factual circumstances

9.2.3 Disposition – The taking of the Intersection Land was not legally unreasonable

10.0 Was the applicant entitled to procedural fairness after the decision was made to take the land by the Commission and before the Governor gave consent?

10.1 Procedural fairness – Vice regal powers – Statutory construction – A clear intention is required to abrogate the implied condition that attaches to an administrative statutory power

10.2 Relevant observations made by the Court of Appeal and the High Court in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission

10.3 Tah Land's submissions

10.4 Disposition ‑ Procedural fairness abrogated by the scheme that applies to the compulsory taking of reserved land pursuant to s 191 of the Planning and Development Act

11.0 Conclusion

Annexure A

Annexure B

Annexure C

Annexure D

Annexure E

Annexure F

SMITH J:

1.0 The application and the result

Tah Land Pty Ltd, applies to the court for judicial review and a writ of certiorari to quash a decision of the Western Australian Planning Commission to make a taking order under s 191 of the Planning and Development Act 2005 (WA) and s 177 and s 178 of the Land Administration Act 1997 (WA) in relation to land it owns that forms part of the Kingsway Shopping Centre, Landsdale, (being land comprised in Lot 803 on Deposited Plan 419815, and being a portion of Lot 2 on Diagram 24051, together with the land comprised in Lot 804 on Deposited Plan 419815, being a portion of Lot 3 on Diagram 24051), and is the land known as the Intersection Land (Taking Order).
Tah Land also seeks a declaration that the Taking Order was beyond power because it was made without a proper purpose; alternatively it was legally unreasonable; alternatively, the Governor's consent for the Taking Order under s 191 of the Planning and Development Act was not lawfully provided because it was affected by a breach of the rules of procedural fairness.
For the reasons that follow, no reviewable error is established, and the application for judicial review should be dismissed.

2.0 Background

2.1 The history of the acquisition of the Intersection Land

Tah Land acquired the Intersection Land in 1992 as part of a larger parcel of undeveloped land, being the whole of Lots 2 and 3.
Tah Land developed Lots 2 and 3 by building the Kingsway Shopping Centre. Tah Land obtained development approval from the City of Wanneroo to build a shopping centre by entering into a Deed with the City on 2 September 1992 whereby part of the agreement was for the land to be rezoned in Town Planning Scheme No 1 (TPS 1) from 'Rural' to 'Commercial, Hotel, Service Industrial and Service Station'.[1]
[1] The history of the acquisition of the land by the plaintiff and the zoning and the relevant development approvals are set out in detail in City of Wanneroo v Tah Land Pty Ltd [2020] WASC 249 [18] ‑ [34]; and City of Wanneroo v Tah Land Pty Ltd [2022] WASCA 53 [1].
Prior to purchasing the land and prior to Tah Land and the City entering into the Deed in June 1998, the owners of the land, Debkot Pty Ltd, initiated an amendment to TPS 1, to rezone the Land from rural to accommodate several commercial uses. After the Minister declined to approve the amendment without modifications (not related to the Intersection Land) the City resolved on 6 May 1992 to defer consideration of the modifications until advice was received from Debkot Pty Ltd that they agreed to the ceding of the land for future road requirements for the intersection expansion of the south‑eastern corner of the land. At about that time, Debkot Pty Ltd entered into an agreement with Tah Land for Tah Land to purchase Lots 2 and 3. By letter to the City dated 7 May 1992, Tah Land (as purchaser of the Land) agreed to the Minister's modifications.[2]
[2] City of Wanneroo v Tah Land Pty Ltd [2020] WASC 249 [18] ‑ [26].
On 24 June 1992, the City approved Amendment 443, with the modifications as required by the Minister, and agreed to by Tah Land. On 1 July 1992, Lots 2 and 3 were transferred to Tah Land. On 2 September 1992, the City and Tah Land executed the 1992 Deed.[3]
[3] City of Wanneroo v Tah Land Pty Ltd [2020] WASC 249 [27] ‑ [29].
Pursuant to the Deed, the plaintiff agreed to transfer to the City, for no cost, various parts of the land for public purposes, including prior to the commencement of trading a portion of land for a major intersection treatment at the north east corner of Wanneroo Road and Hepburn Avenue (being the Intersection Land the subject of the Taking Order).[4]
[4] Clause 7.1 of the Deed; Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 55.
The City agreed pursuant to the terms of the Deed that following the transfer of the Intersection Land, it would lease to Tah Land, and Tah Land agreed to take a lease of the Intersection Land for a period of 25 years on the date of transfer for an annual rental of one dollar.[5] The Deed also provided that if prior to the expiration of the lease Main Roads Western Australia does not determine that the Intersection Land is required for a major intersection treatment then upon Main Roads Western Australia providing notice in writing of the same, the City was required to transfer the Intersection Land to Tah Land free of consideration, but in all other respects at Tah Land's cost and expense.[6]
[5] Clause 7.2 of the Deed; Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 56.
[6] Clause 7.2 (a) and 7.3 of the Deed; Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 56 ‑ 57.
For reasons that are not relevant to the disposition of this application, the transfer of the Intersection Land to the City did not occur. However, the shopping centre was built, and commenced trading.

2.2 The Intersection Land is reserved by an amendment to the Metropolitan Region Scheme in 1994

Following public consultation, as required by s 33 of the Metropolitan Region Town Planning Scheme Act 1959 (WA) (repealed),[7] the Intersection Land was reserved under the Metropolitan Region Scheme (MRS) for 'Other Major Highways' by Amendment 948/33 on 9 August 1994.[8] The nomenclature 'Other Major Highways' was subsequently amended by MRS 988/33 to 'Primary Regional Roads'.
[7] The Metropolitan Region Scheme is continued in force as a region planning scheme under s 33(1) of the Planning and Development Act 2005 (WA).
[8] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, par 13, Attachment AH 1, 10.
An aerial map of part of Tah Land's land including the Intersection Land and a coloured map that shows part of Tah Land's land and the existing roads that are reserved for Primary Regional Roads is annexed to these reasons as Annexure A.
Although the reservation of the Intersection Land, was gazetted and took effect in 1994, no steps were taken to take the Intersection Land until late 2020.

2.3 Tah Land obtains development approval in 2003 to develop the Intersection Land to expire on 30 April 2021

In or about 25 November 2003, Tah Land obtained development approval for the Intersection Land, which approval was valid until 30 April 2021.[9]
[9] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 23, par 8, 87 - 93.
Condition 1 of the approval provided that the buildings and use comprising the development for which approval was granted were to be removed and discontinued at the expiration of the expiry of the approval, and the land (Intersection Land) reinstated to its former condition, unless a prior approval is granted by the Commission to allow the continuance of the approved buildings and uses beyond 30 April 2021.[10]
[10] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 92.
Condition 3 stated that the land required for Hepburn Avenue and the 20 metre x 20 metre truncation at the intersection of Hepburn Avenue and Wanneroo Road being dedicated as a public road without any payment of compensation in accordance to the plan of subdivision approved by the Commission on 11 April 1996.[11]
[11] It is noted that although the subdivision plan was approved the land was not subdivided.
Condition 4 of the 2003 development approval required the Intersection Land to be ceded to the City free of cost, and without payment of compensation prior to commencement of construction.[12]
[12] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 92.
A copy of the conditions is annexed to these reasons as Annexure B.
The transfer of the Intersection Land to the City did not occur. However, the development of the Intersection Land went ahead, and leases were entered into between Tah Land and business owners of retail outlets in four buildings constructed on the Intersection Land.

2.4 Tah Land makes a second application for development approval of the Intersection Land in December 2019 which is refused

In November 2019, Tah Land applied for development approval for the Intersection Land which sought approval on the same conditions as the 25 November 2003 approval except for conditions 1, 3 and 4 which Tah Land sought to have deleted. In their application, it was stated that approval was sought to allow the existing commercial development to remain and to continue to operate in the foreseeable future without a time limitation on the approval period.[13]
[13] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachment AH 3, 43 ‑ 44.
By letter dated 31 January 2020, Main Roads notified the Commission that it strongly objected to the development application. In the letter, the Acting Manager Statutory Road Planning, Ian Thompson, stated:[14]
[14] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, 110 ‑ 111.
[T]he land the subject of DA02/1551 was, reserved, as Primary Regional Road in November 1994. The purpose and intent of that reservation is to set aside the area for the ultimate development of the Wanneroo Road‑Hepburn Avenue grade separated interchange.
Under the Metropolitan Region Scheme, Wanneroo Road is reserved as Primary Regional Road, while Hepburn Avenue is reserved as Other Regional Road.
Wanneroo Road is, classified as a primary distributor road under the care and control of MRWA with a speed limit of 70 km/hr. It is an important regional road and secondary freight route carrying a mix of general, commuter and freight traffic, connecting the industrial areas of Balcatta, Wangara and Neerabup and linking with Charles Street to the south. Construction of grade separated interchanges along Wanneroo Road at Ocean Reef Road and Joondalup Drive has commenced and will be, completed by 2021.
Hepburn Avenue is classified as a District Distributor A and operates with a speed limit of 70 km/h. It provides for high capacity east‑west traffic movements between significant centres such as industrial, commercial and residential areas. Hepburn Avenue provides an important link between the Mitchell Freeway in the west, Wanneroo Road and the new Northlink Project to the east, with Kingsway City Shopping Centre and Kingsway Sporting Complex being within close proximity to the proposed interchange. East of Wanneroo Road Hepburn Avenue is, managed by the City of Wanneroo and west of Wanneroo Road it is, managed by the City of Joondalup.
Contrary to the assertion in page 3 of the covering letter from Rowe Group dated 25 November 2019. The at‑grade signalised intersection at Hepburn Avenue and Wanneroo Road is considered to be a very high congestion and safety priority for MRWA. The intersection is regularly ranked in the top 20 intersections list for both traffic safety and congestion. The development of the Kingsway centre has been possible because of the planning and provision of major roads in the subject locality and has contributed to the need for the improvement of the adjoining intersection.
Given its current operational and safety performance Main Roads anticipates that it will be grade separated by 2026.
Main Road has allocated funding in the 2020/21 financial year to progress project development work for the grade separated interchange project at Wanneroo Road and Hepburn Avenue.
To achieve this completion date it is Main Roads position that the buildings and uses on the site be removed and the land ceded by 30 April 2021 as per the consent orders made by the Town Planning Appeal Tribunal on 14 November 2003. The grade separation of the intersection will be a significant project and will take a number of years to complete the necessary up‑front preconstruction activities and investigations. Services relocations in this area are also likely to be significant and construction is likely to take at least 2 years.
As such, Main Roads recommends refusal of the application to remove conditions 1, 3 and 4 of the 2003 development approval.
Further, Main Roads requests that WAPC enforce conditions 1, 3 and 4 so as to require:
1)The immediate ceding of the reserved land from the proponent to the City of Wanneroo free of cost and without payment of compensation;
2)The land required for Hepburn Avenue and the 20m x 20m truncation at the intersection of Hepburn Avenue and Wanneroo Road being dedicated as a public road without payment of compensation;
3)Prior to 30 April 2021, the removal of buildings on the reserved land and reinstatement of the land to its former condition.
On 22 February 2020, the Commission refused the development application.[15] The reasons for the refusal were as follows:[16]
1.The proposed development is located on land reserved for a Primary Regional Road under the Metropolitan Region Scheme and is therefore contrary to the purpose and intent of the Reservation and would prejudice future use of the Reservation for a Primary Regional Road;
2.The land reserved to Primary Regional Road is required by the Main Roads Western Australia for the grade separated interchange project at Wanneroo Road and Hepburn Avenue (Attached Concept Plan); and
3.Main Roads Western Australia have advised that funding is allocated in the 2020/21 financial year for the interchange project, land is required by 30 April 2021, and anticipates completion by 2026.

2.5 Tah Land made an application in March 2020 for compensation for injurious affection, and the Commission makes the First Taking Order in May 2021

[15] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, par 23.

[16] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, 116.

Following that refusal, on 11 March 2020 Tah Land made an application for compensation under the Planning and Development Act for injurious affection.[17] By then the requirement in the development approval of November 2002 that the buildings on the Intersection Land be removed by April 2021 was causing concern among tenants.[18]
[17] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, 117 ‑ 120.
[18] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, pars 19 - 22.
On 18 September 2020, the State Solicitor's Office advised Tah Land's solicitors that the effect of s 33(3)(a) of the COVID‑19 Response and Economic Recovery Omnibus Act 2020 (WA) was to extend that period to 30 April 2023.[19] The letter also advised that it was the intention of the Commission to compulsorily acquire the Intersection Land. In the letter dated 18 September 2020, an Adviser, Native Title and State Lands, Ms Michele Payne, a solicitor employed by the State Solicitor's Office, stated:[20]
[19] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, 124.
[20] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, 124 - 125.
I refer to:
a)Your correspondence with the Western Australian Planning Commission (Commission) and myself with regard to the injurious affection compensation claim dated March 2020 arising from the Commission's refusal to approve the development application made in 2019 in respect of the currently time limited development on the Primary Regional Road reserved portions of Lots 2 and 3; and
b)Your separate correspondence with the Minister for Transport regarding the design of the proposed grade separated interchange at the Wanneroo Road and Hepburn Avenue intersection which is to be constructed on the area of the reserved land the subject of the injurious affection claim. I note that correspondence in part involves approaches by Tah Land's tenants to the Minister regarding their desire to extend their occupation and ability to keep trading.
Position of tenants of time limited development in the Primary Regional Road Reserve
Section 33(3)(a) of the COVID‑19 Response and Economic Recovery Omnibus Act 2020 which came into operation over the last week has the effect of extending the period of the approval for the development in the Primary Regional Road reservation - which would otherwise have expired in April 2021 - by a further two years. On the assumption that the term or potential term of your client's leases with its tenants reflected the original time limited development approval period, it is open to your client to agree to extend any tenancy arrangement to April 2023.
Interchange design
The government supports the design preferred by Main Roads WA for a grade separated intersection design prioritising Wanneroo Road for through traffic, and in the expectation that the project is likely to be funded in the relatively short term, design is proceeding.
Acquisition of intersection land
On that basis, a recommendation is being formulated which proposes that the Commission compulsorily acquire the portions of Lots 2 and 3 reserved Primary Regional Road for the purposes of the Metropolitan Region Scheme utilising the provisions of Part 9 of the Land Administration Act 1997 as read with Part 11 of the Planning and Development Act 2005.
The issue of your client's past benefits of various kinds received in reliance on what is understood to have been a long standing (if unperformed) commitment on the part of your client to contribute the land required for the intersection free of cost, can be explored in the context of resolving any claim for compensation your client makes following a taking.
Such taking will supersede the injurious affection compensation claim.
In November 2020, the Executive Finance and Property Committee of the Commission resolved to take the whole of the Intersection Land under s 191 of the Planning and Development Act and to recommend to the Minister for Planning that she approve the taking by the Commission and obtain the consent of the Governor under s 191.[21] The report before the Committee stated under the heading 'Summary' that:[22]
This report seeks approval to compulsory take land reserved in the MRS for Primary Regional Roads to resolve a disputed claim for compensation for injurious affection for the refusal of a development application. If this action is not taken the landowner will seek Orders for the appointment of an arbitrator under the Commercial Arbitration Act.
[21] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachment AH 4, 46 - 49.
[22] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachment AH 4, 46.

On 6 April 2021, Tah Land made an application to extend the period in Conditions 1 and 4 of the development approval of November 2003 to April 2023.[23] It appears at that time that Tah Land was not aware that the Commission had resolved to take the Intersection Land.
[23] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, 153 - 221.
In a letter dated 6 April 2021, addressed to the City setting out the grounds of the development application, Tah Land's planning consultants pointed out that as of that date no compulsory taking order had been made. The letter went on to state that:[24]
(a)Main Roads had informed a tenant by emails on 10 November 2020 and 18 February 2021 that 'the project for the Wanneroo Road and Hepburn Avenue is not in Main Roads' four year forward estimate construction programme, and all projects not listed are considered long‑term;
(b)on the basis of the advice from Main Roads, there is no apparent reason why development approval could not be extended, even if the Commission compulsory acquired the Intersection Land for the purpose of that project, if there is no planned commencement date for the project after that. Therefore, Tah Land had instructed the lodgement of the development application with a view to securing some certainty for the commercial objectives and needs of the tenants and Tah Land. Approval of the application would allow the existing commercial development to remain and to continue to operate in the foreseeable future.
[24] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 155.
The advice from Main Roads referred to in the letter was an email from a planning assessment officer, Steven Fernandez. In an email sent to a tenant of Tah Land on 10 November 2020, Mr Fernandez attached an aerial image with the Metropolitan Region Scheme land required for the intersection overlaid as a red line.[25] In the email, Mr Fernandez after stating that the project was not in Main Roads' four year forward estimated construction programme and that all projects not listed are considered long‑term, he also noted that project timing is subject to change and that Main Roads assumes no liability for any change to the timing information provided.[26]
[25] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 191.
[26] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 191; see also an email from Mr Fernandez to the landowner of land on the eastern side of Wanneroo Road opposite Tah Land's land.
This application did not proceed because:
(a)on 13 April 2021, the State Solicitor's Office informed Tah Land's solicitors by email and by letter of the same date, that the Commission intended to move to take the Intersection Land imminently;[27] and
(b)on 27 May 2021, the Commission made a taking order for the Intersection Land (First Taking Order), and lodged the First Taking Order for registration by Landgate on the same day.[28]
[27] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 222 ‑ 223 and 229 ‑ 230. Affidavit of Raymond Jin Wen Tan affirmed 29 September 2022, Attachment RT 3, 17.
[28] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 238 ‑ 239.
On 30 June 2021, Tah Land commenced proceedings seeking judicial review of the First Taking Order. By consent, on 27 July 2021, an order was made by Archer J quashing the First Taking Order on the ground that it was made for an improper purpose.
On 13 August 2021, Tah Land's solicitors wrote to the State Solicitor's Office and put a submission that it was not appropriate for the Commission to take the Intersection Land until it is actually needed, because it will result in unnecessary disruption to the operation of the shopping centre, and an uncertain period of transition adversely affecting a range of businesses. The letter also requested that representatives of the State Solicitor's clients engage with representatives of Tah Land regarding:
(a)whether all of the Intersection Land is in fact required for an upgrade to the intersection;
(b)when such Intersection Land would reasonably be required (whether in part or in whole); and
(c)what the appropriate arrangements should be put in place to minimise disruption to the businesses of Tah Land and its tenants.[29]
[29] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 7, 261 - 262.
In response, a solicitor employed by the State Solicitor's Office, Vince McMullen, replied by letter dated 23 August 2018 stating that:[30]
I am instructed that the entirety of the land reserved for Primary Regional Road under the MRS in 1994 is required in order to enable construction of a grade separated intersection prioritising Wanneroo Road for through traffic. I am further instructed that the land is required imminently in order to enable site investigation and other preparatory steps to occur.
…
In light of the above, the Commission considers that consultation is neither required by law or appropriate in the present circumstances. (emphasis added)

2.6 The Commission makes the Taking Order the subject of this review application

[30] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 8, 263.

On 18 August 2021, the Executive, Finance and Property Committee of the Commission met to consider a report and a recommendation that it resolve to take the whole of the land reserved for Primary Regional Roads for the purpose of the MRS under s 191 of the Planning and Development Act, and to recommend that the Minister for Planning seek the consent of the Governor to the taking under s 191. The Committee approved the recommendations.[31]
[31] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, pars 31 - 33, Attachment AH 6, 52 ‑ 56.
In the report of the Executive, Finance and Property Committee of the Commission, under the heading 'Summary', the history of the previous taking order that had been quashed by an order made by Archer J, by consent on 27 July 2021 was recorded. The report then went on to state that the reserved land is required for the purposes of the MRS in order to enable the planned construction of a grade separated intersection between Wanneroo Road, and Hepburn Avenue, and it was recommended that the Commission seek the Governor's consent to take compulsorily the reserved land pursuant to s 191, and issue a new taking order in respect of the Intersection Land.[32]
[32] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachment AH 6, 52 - 53.
In the background section of the report, it is stated that the need for future grade separation of the intersection was confirmed by the East Wanneroo District Transport Study, published in early 1994, and the land was reserved by an amendment to the MRS on 9 August 1994, following advertisement of the proposed amendment, the receipt of submissions, and hearings in June 1994.[33]
[33] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachment AH 6, 53.
Under the heading, 'Current road planning and design', the report stated that, Main Roads has commenced planning and design for the grade separated intersection, and funding has been allocated for project development over a three year period, including a total of $393,000 in 2020 ‑ 21. Of importance to the disposition of this application, the report then went on to state:[34]
The reserved land needs to be acquired immediately for the purposes of the MRS in order to enable MRWA to readily access the reserve land to undertake site investigations and to ensure timely site availability as the project proceeds. (emphasis added)
[34] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachment AH 6, 54.
Following the making of the resolutions to take the Intersection Land, a briefing note was prepared by the Department of Planning which note was approved by the Director of General, and the Chairman of the Commission on 14 September 2021. The briefing note replicated the statements made in the report to the Executive, Finance and Property Committee of the Commission, which are set out in [33] ‑ [36] of these reasons. The briefing note to the Minister contained a recommendation that she seek the consent of the Governor in Executive Council to the compulsory acquisition of the Intersection Land for the purpose of the MRS under s 191, and that the Minister, sign the attached Executive Council submission. The Minister approved the recommendation.[35]
[35] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachment AH 7, 57 - 59.
In the Executive Council Explanatory Note, it stated that the reserved land needs to be acquired immediately in order to enable Main Roads to readily access the reserved land to undertake site investigations and to ensure timely site availability as the project proceeds.[36] The note also stated that consultation had taken place with Main Roads.[37]
[36] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachment AH 8, 60.
[37] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachment AH 8, 61.
On 5 October 2021, the Executive Council met, and gave advice to the Governor to consent to taking of the Intersection Land. The Governor acted on this advice and gave his consent.[38]
[38] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachment AH 9, 62.
On 7 October 2021, the Commission made a Taking Order taking the Intersection Land (which taking order is the subject of this application for judicial review). The Taking Order was lodged for registration at Landgate on 8 October 2021.[39]
[39] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, par 37, Attachment AH 10, 63 ‑ 66.
At the time of the hearing of the application, the registration of the Taking Order on the titles of the Intersection Land had not been effected and was awaiting the outcome of a decision in this matter.
On 31 May 2022, the State Solicitor's Office gave the tenants of the Intersection Land notice to quit by 30 April 2023. In order to permit time for Tah Land to arrange for the demolition of the buildings and improvements on the Intersection Land by 30 April 2023, the tenants were given notice by Tah Land to vacate their premises by 28 February 2023.

3.0 The Taking Order

The Taking Order made by the Commission on 7 October 2021, following consent being obtained from the Governor, states that:[40]
(a)in cl 2, the land [the Intersection Land] is taken subject to the preservation of those interests if any specified as being preserved in respect of that land [being an easement to the Electricity Corporation, a memorial under the Contaminated Sites Act 2003 (WA), and an easements to the City];
(b)in cl 3, the interests described under the subheading 'Proposed Disposition/Grant' (in the Schedule to the Taking Order) are to be disposed of, or granted to the person or persons specified in respect of that interest. In the Schedule, the proposed Disposition/Grant is stated to be that the land once taken is to be held as Crown Land in the name of the State of Western Australia, and an immediate disposition to the Commission for an estate in fee simple in possession for the public work herein expressed;
(c)in cl 5, the land required is for the purpose of the planning scheme, and designated for the purpose of that planning scheme, both of which are as described under the subheading, 'Designation'. In the Schedule to the Taking Order the Designation is stated as (for), 'Primary Regional Roads – Wanneroo Road and Hepburn Avenue Intersection under the Metropolitan Region Scheme'.

4.0 The issues raised in the grounds of review – whether there was a lack of validating purpose and whether the Taking Order was legally unreasonable

[40] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachment AH 10, 65 - 66.

Tah Land contends that the report of the Executive Finance and Property Committee dated 18 August 2021 reveals that the Commission made the Taking Order for the following purposes:
(1)the Intersection Land was required for the purposes of the MRS in order to enable the planned construction of the Wanneroo Road and Hepburn Avenue intersection; and
(2)the Intersection Land needed to be acquired immediately for the purposes of the MRS in order to enable Main Roads to readily access the reserved land to undertake site investigations and to ensure timely availability as the project proceeds.
The Commission agrees that the Taking Order was made for the reason described in [44(1)] but that the statement in the report that there was a need for the Intersection Land to be acquired immediately in order to undertake site investigations etc is simply information that provides an explanation as to the timing of the Commission's decision to acquire the land.
The issues in dispute between the parties in pars 1 to 6 of the amended grounds of review are whether:
(a)the asserted purpose or purposes of the Taking Order were not reasonably or objectively open with the result that the Commission had no proper purpose for the making of the Taking Order, or
(b)alternatively, the making of the Taking Order by the Commission was legally unreasonable on the factual circumstances upon which the Commission made its decision to take the Intersection Land.
The resolution of these issues turn upon the facts that can be found on the evidence of the factual circumstances of what work Main Roads had planned to carry out or had commenced to carry out at the intersection of Hepburn Avenue and Wanneroo Road, and what instructions officers employed by Main Roads had conveyed to the Commission of its plans prior to and at the time of making of the decision by the Commission to take the Intersection Land.
Tah Land claims that at the time of the making of the Taking Order: (1) the intersection project was at the stage of preliminary design and geotechnical investigations, several design concepts were under consideration and a preferred design had not yet been developed or determined; (2) the intersection project only had development funding and there was no funding for construction in the four year forward estimates; (3) construction would not commence for at least three years from the date construction funding was obtained; and (4) where Main Roads required access to the Intersection Land, it could obtain that access under s 182 of the Land Administration Act.
In the circumstances, Tah Land argues that (contrary to the reasons given by the Commission when it made the decision to acquire the Intersection Land) there was no expressed need for Main Roads to immediately acquire the Intersection Land or require access to the Intersection Land.
Tah Land's amended application articulates two broad categories of grounds on which it seeks judicial review. First, it alleges in par 5 of the amended application that the purposes of the Commission for the making of the Taking Order as revealed in the report to the Executive Finance and Property Committee were not reasonably or objectively open to it with the result that the Commission had no proper purposes for making the Taking Order. Alternatively, Tah Land contends in par 6 that the decision of the Commission to make the Taking Order was legally unreasonable. Tah Land's contentions in respect of legal unreasonableness is set out in par 6 in the circumstances particularised in pars 2 and 4, together with a plea in par 6(c) that having regard to the costs, disruption and other adverse impacts imposed on Tah Land and others by reason of the Taking Order was legally unreasonable and therefore beyond power.

Tah Land pleads that at the time of the Taking Order there was no evidence that Main Roads had indicated to the Commission that there was a need for the immediate compulsory acquisition of the Intersection Land to enable the planned construction of the intersection in order to readily access that land or ensure timely site availability as the project proceeds. This issue is also raised in par 4(c) and (d), which contend that there was no evidence on which the Commission could have reasonably formed the view at the time of the making of the Taking Order that the immediate acquisition of the Intersection Land was necessary in order to enable the planned construction of the intersection by Main Roads, and/or to readily access the land to ensure timely site availability as the project proceeded.
Tah Land also claims in pars 2(a) and (b) and (d) and in 4(a) that Main Roads had no budgetary commitment to the construction of the intersection, no funding for the work in the four year estimates, did not have any identified known or likely time frame which it intended to construct the intersection, had no preferred design, or configuration for the intersection, did not have any real or genuine intention of constructing the intersection within the foreseeable future, and any such intention was, at the most tentative, provisional, and to be realised at some point in the indefinite future.
Tah Land also pleads in par 4(b) that the making of the Taking Order was contrary to Main Roads' general policy or practice of not seeking compulsory acquisition of land prior to funding for the construction of the Works for which the land was required been approved.

5.0 Relevant Statutory provisions of the scheme to take reserved land

Section 191 of the Planning and Development Act provides:
191.Compulsory acquisition of land in scheme area
(1)The responsible authority may, for the purpose of a planning scheme and with the consent of the Governor, take compulsorily under and subject to Part 9 of the Land Administration Act 1997 (but subject to subsection (3)), any land comprised in the scheme, and whether situate within or without the boundaries of the district of the responsible authority, as if the land were required for a public work (as defined in section 151(1) of that Act).
(1A)If the land to be taken under subsection (1) (the relevant land) forms only part of a lot, the responsible authority may also take under subsection (1) the rest of the lot, or any part of the rest of the lot, for purposes related to the taking of the relevant land.
(1B)Subsection (1A) applies whether or not the rest of the lot, or the part of the rest of the lot, is comprised in the planning scheme and whether or not the taking of the rest of the lot, or the part of the rest of the lot, is for the purpose of the scheme.
(2)Land acquired under subsection (1) is to be acquired in the name and on behalf of the responsible authority.
(3)When any land is taken compulsorily under the powers conferred by this section the provisions of —
(a)sections 166 to 171 inclusive; and
(b)section 180,
of the Land Administration Act 1997 do not apply to or in respect of the land or the taking or in any manner whatsoever, and that Act is to be read and construed as if the provisions were deleted.
Section 191(3) excludes some of the compulsory acquisition powers in within pt 9 of the Land Administration Act, which establishes a statutory scheme of compulsory acquisition of interests in land. In particular, ss 166 to 177 are excluded. Sections 166 and 167 are contained in div 2 of pt 9 which provide for acquiring interests in land for the purpose of conferring interests, and ss 168 to 177 and s 180 are contained in div 3 of pt 9 which division contains the procedure for the taking of interests in land and designating for a public work.
The relevant parts of the compulsory acquisition scheme for the taking of land that is excluded by the operation of s 191(3) are as follows:
(1)Although s 161 of the Land Administration Act is not an expressly excluded provision, it does not apply when reserved land is compulsorily acquired under s 191 of the Planning and Development Act. Section 161 of the Land Administration Act is a separate head of powers to compulsorily acquire land. Section 161 confers power for any interest in land to be taken whenever the Crown, the Governor, the Government, any Minister or any State instrumentality or any local government is authorised to 'undertake, construct or provide any public work, and the use of any land or any interest in land is required for the purposes of the work'. In contrast, land may only be taken by a responsible authority under s 191 of the Planning and Development Act 'for the purpose of a planning scheme' which, in effect, means that the land can only be taken under s 191 if it is reserved for the purpose of a planning scheme, and the taking must be consistent with the terms and effect of the planning scheme.[41]
(2)Section 166 of the Land Administration Act provides that pt 9 and pt 10 apply in relation to a taking of interests in land authorised under s 165 as if the taking were for public work. Section 165 provides for the Minister to take any land under s 161 of any estate, interest, right, power or privilege in, over or in relation to land, and any land is required for the purposes of the grant for the purpose of enabling the use or development of the land.
(3)Section 167 of the Land Administration Act provides for the Minister at the request of a person who is to receive a grant of an interest of land that is taken under s 165 to enter into an agreement as to the amount of maximum amount of compensation and the person is to pay to the Crown.
(4)Sections 168 and 169 are in sub div 1 of div 3 of pt 9 of the Land Administration Act. Sections 168 and 169 provide for the procedure for taking of interests in land by agreement by an acquiring authority. A similar power is to be found in s 190 of the Planning and Development Act which provides for the Commission to purchase land if it considers of any land to which proposed region planning scheme or propose amendment to the region planning scheme is to apply.
(5)Section 170 is in sub div 2 of div 3 of pt 9 of the Land Administration Act. Section 170(1) provides that if it is proposed to take interests in land without agreement under pt 9, the Minister must issue a notice of intention to take the interests, in accordance with the requirements of the s 170. Pursuant to s 170(2), (3), (4) and (5) except if the proposed taking is the purpose of the railway authorised by a special Act, the notice must be registered in the document of the title relating to land and a memorial of the notice must be registered on the Deeds Register, the Minister must cause a copy of the notice to be published in a daily newspaper, and served on the principal proprietor of any land affected by the notice, and others. The Minister must also advise those persons served of the procedures under pt 9 and pt 10 for the taking of land, payment of purchase money or compensation for land taken, rights of appeal or review and rights of the future disposition of the land taken by agreement and compulsory taking, unless they have already be given that advice.
(6)Section 180 of the Land Administration Act provides that a taking order may be annulled or amended.
[41] See Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409 [34] (French CJ, Gummow, Crennan & Bell JJ) in respect of the effect of s 13 of the Town Planning and Development Act 1928 (WA) when compared to the taking of land under s 161 of the Land Administration Act.
There are, however, other provisions contained within div 3 of pt 9 of the Land Administration Act whilst not expressly excluded by s 191(3) of the Planning and Development Act these provisions are incapable of application to the compulsory acquisition of reserved land under s 191(1) of the Planning and Development Act. This is because each of these provisions only apply where a notice of intention to take land has been issued under s 170 of the Land Administration Act. One of these provisions is s 175 which entitles interested persons to make submissions to the Minister prior to final decision been made to take land.
Tah Land claims that s 175 is not excluded. However, Tah Land's construction cannot stand when the scheme of the taking of land by the issuing of a notice of intention to take land under s 170 is considered.
In addition, it is not only s 175 of the Land Administration Act that can have no application to the compulsory acquisition of reserved land under s 191 of the Planning and Development Act.
The provisions of div 3 of pt 9 of the Land Administration Act including s 175 that have no application are as follows:
(1)Section 171 of the Land Administration Act is expressly excluded by s 191(3) of the Planning and Development Act. Section 171 provides for the content and validity of a notice of intention to take land.
(2)Section 172 (transactions affecting required land prohibited without the Minister's consent), s 173 (no improvements are made to required land without Minister's approval) and s 174 (evidence of ministers consent may be required by the Registrar of Titles) also do not apply as they provide for particular matters in respect of land that is included in a current notice of intention. Where no notice of intention is to issue, these provisions can have no application.
(3)Section 175 provides for a right to be heard by persons whose interests are affected by the proposal to take the land. However, this right to be heard only expressly arises pursuant to s 175(1) where a notice of intention is issued to the principal proprietor of land affected by the notice and other specified persons. Section 175(1) provides that those persons may, alone or jointly with any other person or body so qualified, serve on the Minister, a written objection to the taking of interests in the land, not relating to compensation. Section 175(3) requires that an objection must specify the land and the nature of the interest of the objector in the land, and the grounds of objection and pursuant to subsection (4) the Minister must consider any objections and any other representations by the objectors. Pursuant to s 175(5) after considering the objections and representations, the Minister is to determine that the notice of intention is to stand unchanged, or to cancel or amend the notice of intention, or cancel the notice and substitute another intention, in accordance with s 170(6).
(4)Section 177 also does not apply. Section 177(1) provides that if a notice of intention has been registered in relation to land and the Minister either has received no objections within a specified period, or has determined that the objections received in time do not warrant the cancellation, amendment or cancellation in substitution of the notice of intention or is satisfied that every objector has consented in writing to the purchase of or taking of the objector's interest, the Minister may make a taking order consistent with a notice of intention. Section 177(3) applies to agreements concluded in accordance with s 168 (which provision is expressly excluded by s 191(3) of the Planning and Development Act).
Senior counsel for the respondent points out that when reserved land is taken for the purposes of a planning scheme pursuant to s 191(1), it is not necessary that the land be immediately used for that purpose or that the reserved land can only be taken if the whole of it will be used for the purposes of a planning scheme. This is because s 196 of the Planning and Development Act expressly contemplates that after reserved land is taken, it can be held by the commission and subsequently if it is no longer required by the Commission, with the consent of the Governor, the land can be sold. Section 196 provides:
196.Commission may sell etc. acquired land
(1)The Commission is to hold for the purposes of the relevant region planning scheme, Swan Valley Planning Scheme or improvement plan any land acquired by it under this Part and may, subject to subsections (2) and (3), dispose of or alienate that land —
(a)for or in furtherance of the provisions or likely provisions of the relevant region planning scheme, Swan Valley Planning Scheme or improvement plan; or
(b)if that land is no longer required by the Commission.
(2)Subject to subsection (3), except with the consent of the Governor, the Commission is not to dispose of or alienate any land compulsorily acquired by it other than for or in furtherance of the provisions or likely provisions of the relevant region planning scheme, Swan Valley Planning Scheme or improvement plan.
(3)In exercising a power to dispose of or alienate land conferred by this section, the Commission is to have regard to the general principle that in such cases land acquired by the Commission should, if in the opinion of the Minister it is practicable and appropriate to do so, be first offered for sale at a reasonable price determined by the Minister to the person from whom that land was so acquired.
(4)In relation to a part of a lot purchased or taken by the Commission in accordance with section 190(2) or 191(1A), in subsection (1), the reference to the purposes of the relevant region planning scheme or the Swan Valley Planning Scheme is a reference to the purposes for which the part of the lot was purchased or taken.
Tah Land claims that if Main Roads required access of the Intersection Land for preliminary geotechnical investigations it could have accessed the Intersection Land by an authorised person giving notice to Tah Land and its tenants pursuant to s 182 of the Land Administration Act, rather than the Commission taking the land under s 191 of the Planning and Development Act.
It is common ground that one of the provisions of pt 9 of the Land Administration Act that have application to the taking of land under s 191 of the Planning and Development Act is the power to enter land for a proposed public work for feasibility study pursuant to s 182 of the Land Administration Act. Section 182 provides as follows:
182.Entry for feasibility study
(1)If it appears to the Minister that it may be necessary to use any land for a proposed public work for which the Minister is authorised to take interests in land, the Minister may authorise a person —
(a)to enter on that land; and
(b)to do anything necessary in order to study the feasibility of the proposed public work.
(2)The Minister or person authorised must, before entering on any land under this section, give to the principal proprietor, the occupier, and to the holders of any native title rights and interests, not less than 30 days notice in writing, giving a description of the area of the land to be entered upon, a description of what is proposed to be done for the feasibility study, and the time that it is expected to take.

6.0 The reasons why the Commission recommended to the Governor that the Intersection Land be taken

In support of the grounds of lack of validating purpose and unreasonableness, Tah Land relies, substantially upon correspondence between officers of Main Roads and its consultants, representations made to tenants of the Intersection Land and a neighbouring land owner.
In answer to this submission the Commission claims at all material times, it had no knowledge of this correspondence. The Commission argues that in any event that even if it had knowledge of the correspondence (between officers of Main Roads, including the correspondence with the consultants Main Roads had engaged to carry out design and geotechnical investigations, and what was said at a meeting on 7 August 2021 to the owners of land located opposite to the location of the Intersection Land) the relevant statements in the documents supports its case that the Taking Order was made for a purpose consistent with a planning scheme, namely the MRS, as required by s 191(1) of the Planning and Development Act.

6.1 The findings of fact that Tah Land says that can be drawn from the Main Roads documents

Tah Land submits from the contemporaneous correspondence set out in 6.2 of these reasons the following factual findings should be made:
(a)Main Roads had not finalised the preferred design or configuration for the intersection;
(b)funding for construction of the intersection had not yet been obtained and was not in the four year forward estimates;
(c)construction of the intersection would not commence for at least three years from the date when construction funding was obtained (ie. at least seven years in the future);
(d)where Main Roads required access to land for the purposes of preparatory feasibility and investigations works for the intersection project, it was pursuing that through the exercise of powers under s 182 of the Land Administration Act;
(e)there is no evidence that Main Roads had indicated that it required the immediate acquisition of the Intersection Land to undertake site investigations and to ensure timely site availability as the project proceeds or for any other reason;
(f)according to Main Roads' public policies, the acquisition of land for works would not occur until construction funding had been obtained, which had not occurred. According to the Commission's practice this is not a circumstance in which the Commission would delegate its power to acquire the land for Main Roads because Main Roads has not stated that it requires the land to be resumed.

6.2 The evidence of matters known by the Commission in respect of the intentions and plans of Main Roads in respect of the intersection at the time of the making of the Taking Order

To establish a taking order made under s 191(1) of the Planning and Development Act was not in fact made for the purposes of a planning scheme or that the result of the decision to take was unreasonable, in an application for judicial review the applicant is required to prove on the facts that were before the decision‑maker, the taking order was not made for the purposes of a planning scheme or that the decision to make the taking order could not on the facts have reasonably been made.
The Commission claims that the time of the making of the Taking Order on 7 October 2021, and at the time the decision was made by the Commission on 18 August 2021 Main Roads had informed the Commission of its preferred design and configuration for the intersection of Wanneroo Road and Hepburn Avenue, that is, it intended to construct a quarter loop design, which construction would require the whole of the Intersection Land, and had requested that the land reserved in the MRS be made available for the grade separation interchange.
The Commission argues that the evidence before the court that this position of Main Roads was communicated to it on 31 January 2020 in the letter to the Commission from the Acting Manager Statutory Road Planning setting out the grounds of the objection by Main Roads to Tah Land's application to remove conditions 1, 3 and 4 of the 2003 development approval. In this letter, Main Roads stated that it requested that the Commission enforce the conditions so as to require:[42]
(a)the immediate ceding of the reserved land [the Intersection Land] to the City of Wanneroo; and
(b)prior to 30 April 2021, the removal of the buildings on the reserved land, and reinstatement of the land [the Intersection Land] to its former condition.
[42] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, 111; the text of the contents of the letter is set out in [21] of these reasons.

It appears clear that Tah Land was notified at about the time of the receipt of this letter by the Commission of Main Roads grounds of objection to the removal of the conditions and the granting of a further development approval.[43]
[43] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 25, par 15.
In addition, the Commission relies upon an internal Main Roads email sent on 17 September 2020 from the Acting Director Road Planning for Main Roads, Paul Fourie, to the Project Manager Development Planning and Technical Services, Peter Ward, and the Director, Project Development of Planning and Technical Services, Gary Manning, which email was a copied to a number of officers of Main Roads, in which Mr Fourie stated:[44]
As discussed at our previous meeting, the MRS land required for this grade separation is a very sensitive issue and is currently being dealt with through SAT. The WAPC [the Commission] has received a claim for injurious affection which is expected to be substantial. We met with three SSO's [State Solicitor's Office lawyers] (representing Main Roads, WAPC and DPLH [Department of Planning, Lands and Heritage]) to agree a course of action, to ensure that the land reserved in the MRS is available for the grade separation. This is the land required for the quarter loop option.
My advice to the SSOs yesterday was that the quarter loop option is preferred and that negotiation on land requirement should proceed on that basis. The Chairman of the WAPC was briefed today, and a course of action agreed. John Clydesdale well, probably brief the Minister tomorrow.
[44] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 15, 106.
There is no evidence before the court that a copy of this email was provided to the Commission or to their legal representatives, the State Solicitor's Office. However, what Mr Fourie records in his email about his discussion with the three lawyers from the State Solicitor's Office is corroborated by the letter dated 18 September 2020 from Ms Payne to Tah Land's solicitors the text which is set out in full in [24] of these reasons. In her letter, Ms Payne stated that:[45]
(a)the government supports the design preferred by Main Roads for a grade separated intersection design prioritising Wanneroo Road for through traffic;
(b)in the expectation that the project is likely to be funded in the relatively short term, design is proceeding; and
(c)on that basis, a recommendation was being formulated which proposes that the Commission compulsorily acquire the land reserved Primary Regional Roads for the purposes of MRS.
[45] Affidavit of Raymond Jin Wen Tan affirmed 31 January 2022, Attachment RT 4, 124 - 125.
In light of this evidence, the Commission argues that contrary to the assertions made by Tah Land, prior to and at the time of the making the decision to take the Intersection Land and when the Taking Order was made on 7 October 2021, Main Roads had provided information to the Commission of its preferred design and configuration for the intersection, and had requested that the land reserved be made available for the grade separated intersection.

After the filing of this application for judicial review, Tah Land obtained a subpoena to require the Commissioner of Main Roads to produce documents between 1 January 2019 and 8 October 2021 concerning:[46]
[46] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 1, 13.
(a)the planning and design for an upgraded intersection treatment at the intersection of Wanneroo Road and Hepburn Avenue ('the Upgraded Intersection');
(b)any budgetary commitment for the cost of planning and/or constructing the Upgraded Intersection;
(c)any known or likely time-frame for the construction of the Upgraded Intersection;
(d)any need to acquire land owned by the Applicant proposed to be part of the Upgraded Intersection ('the Intersection Land') taken by the First Respondent in or about July 2021 – October 2021;
(e)any need to acquire land owned by any person other than the Applicant proposed to be part of the Upgraded Intersection;
(f)any policy or practice of the Commissioner of Main Roads about the point at which the compulsory acquisition of land for the purposes of an infrastructure project would be sought to be initiated relative to the status of any funding commitment made for the project;
(g)any need to undertake site investigations on land owned by a private entity (not by a public authority) to design the Upgraded Intersection;
(h)any need to undertake site investigations on land owned by any public authority for the Upgraded Intersection; and
(i)the location of the particular site investigations on all land proposed to form part of the Upgraded Intersection required to be needed in order to design the Upgraded Intersection, when any such site investigations were required to be undertaken, and the reason for any such timing.
In response, the Commissioner of Main Roads produced 503 documents.[47]
[47] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, par 4.
Among the documents produced was a chain of emails, containing the email from the Acting Director Road Planning, Road Planning and Development, Mr Fourie, sent to Mr Ward and Mr Manning on 17 September 2020 on which the Commissioner relies.[48] In a chain of emails exchanged between Mr Ward and the Urban Road Planning Manager, David Van Den Dries, on 17 September 2020, Mr Ward indicated that he was opposed to the direction that had been given that it was Main Roads preferred option that the grade separation of the intersection design traverse over Wanneroo Road with quarter loops located on the northern side of Hepburn Avenue, because it had a $67 million price tag and that there was a more cost effective alternative option achievable for 2051 with a potential cost of $30 ‑ $40 million. However, Mr Fourie made it clear in his response that he had advised the State Solicitor's Office that the quarter loop option was preferable but he asked David Van Den Dries to quickly review by the next day the 'Wanneroo over option' and said, 'if it works and represents a cost saving of $30 million' it could be worth considering as the landowner (Tah Land) had already inquired whether other options would work.[49]
[48] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 15, 106.
[49] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 15, 106 - 108.
As set out below in [87] other options were considered in 2021, including an option that would not take the existing businesses within the Intersection Land. However, the quarter loop option that would take those businesses remained the preferred option of Main Roads.
It is also of importance to Tah Land's case that it is not only the Intersection Land that will be affected by future works to the intersection of Wanneroo Road and Hepburn Avenue, but also land owned by Mr and Mrs Trembath, being Lot 303 (173) Wanneroo Road, Kingsley. Annexed to these reasons as Annexure C is a copy of an aerial image showing Lot 303 as the 'Subject Site', being a copy of an aerial image sent to Mr Trembath on 21 May 2020 by Mr Fernandez. In that email, Mr Fernandez informed Mr Trembath that early design work for the intersection was underway and stated that:
(a)there were no plans in Main Roads' four-year forward estimated construction program;
(b)all projects not listed are considered long‑term; and
(c)that project timing is subject to change.
Mr Fernandez also attached to the email he sent to Mr Trembath on 21 May 2020 a concept design plan for the intersection of Wanneroo Road and Hepburn Avenue and stated that, 'Please note the plans provided are preliminary and subject to change at ultimate development'. Annexed to these reasons and marked as Annexure D is a copy of the carriageway plan Mr Fernandez sent to Mr Trembath on 21 May 2020.
By late 2020, Main Roads had engaged geotechnical engineers, Golder Associates Pty Ltd, to carry out geotechnical investigations in the areas including the land owned by Mr and Mrs Trembath, and the Intersection Land.[50] Annexed to these reasons as Annexure E is a Google Earth image of proposed drill test locations shown as yellow on land surrounding the intersection including the Intersection Land and the land owned by Mr and Mrs Trembath.
[50] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 4, 21 - 35.
On 13 January 2021, Mr Ward gave instructions to Golder Associates to postpone progressing the geotechnical field testing until at least 15 March 2021 to enable obligatory statutory approvals (to enter land) to be obtained.[51] As at 11 February 2021, the 2020/2021 proposed budget for works on the Wanneroo Hepburn Grade Separation was $250,000, and the proposed budget for 2021/22 was $500,000 but $218,805 was estimated for preliminary road design, $178,075 for geotechnical, $150,000 for preliminary structural design and projected salary of $82,514, being a total estimated of $630,588 and an overspend of $130,588.[52]
[51] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 4, 31.
[52] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 9, 66 ‑ 67.
On 12 April 2021, Mr Ward obtained approval to expend approximately an additional $100,000 on geotechnical works in the 2021 financial year.[53]
[53] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 4, 26 - 27.
Main Roads then sought to obtain s 182 Land Administration Act access applications to enter some land including the land owned by Mr and Mrs Trembath. Although it was contemplated that access applications would be made for the Intersection Land,[54] it appears that that did not occur.
[54] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 4, 21 - 25.
On 12 May 2021, Main Roads sought and obtained approval to serve a notice of entry to the owners of Lot 303 owned by Mr and Mrs Trembath, and Lot 401 that adjoins Lot 303 on the opposite corner to Tah Land's land and is owned by the Commission.[55] Approval was also given to serve a notice of authority to enter the land under s 182 to the owners of a nursery on Mr and Mrs Trembath's land, Nursery Australia Pty Ltd (trading as Waldecks).
[55] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 5, 53 - 55.
In each of the notices of authority to enter on land issued on 13 May 2021 the owners of Lot 401 and Lot 403 and Nursery Australia Pty Ltd were informed that:[56]
Preparatory feasibility studies and investigation works are required to finalise the preliminary design for the proposed Wanneroo Rd Hepburn Ave Grade Separation Project (the Proposed Public Work). The site locations of the Proposed Public Works fall within close proximity to the design footprint and consequently Main Roads require entry onto your land to undertake these tasks.
…
I have been authorised under the terms of section 182 of the Land Administration Act 1997 (LAA) to arrange for undertaking the necessary feasibility studies on the above described land of which you are an interest holder. Please refer to a copy of the Authorisation attached.
…
We anticipate the entry on the Land for the purposes of these feasibility studies to continue intermittently over the next 24 months.
The tasks to be carried out as part of the feasibility studies include environmental studies and observations, heritage studies, geotechnical studies and surveys. We will provide you with advice pertaining to the identities of our employees and contractors together with the proposed dates of intended access to the Land to carry out the prescribed work. More than one attendance may be necessary, particularly in relation to those studies, which require data collection over an extended period.
…
[56] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 7, 58 - 59.
It appears that Main Roads did not at any material time approach Tah Land to seek to enter the Intersection Land or to enter by obtaining approval pursuant to s 182 of the Land Administration Act.
It also appears that at least by May 2021, Main Roads had engaged engineers GHD to prepare a preliminary design for the intersection. In an email to Mr Ward on 21 May 2021 from an employee of GHD and attached minutes of Project Progress Meeting 1 held on 14 May 2021, it is recorded that several options for the configuration of the design of the intersection were considered, one of which, 'would not take the existing Kingsway Shopping Centre businesses within the MRS' (businesses within the Intersection Land).[57] In the minutes of the meeting is recorded that the location and design of this option was really difficult to achieve due to the concept layout, and there were high number of constraints for this option.[58] Annexed to these reasons as Annexure F is a plan shown on an aerial map of the option for the grade separation that would not take the businesses on the Intersection Land.
[57] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 16, 111 - 115.
[58] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 17, 118.
It appears clear, however, that from an internal email Mr Ward send to a director of Main Roads, Mr Manning, that whilst Mr Ward may have been keen to pursue this option, at least by 3 September 2021, Mr Ward came to understand why the direction that had been given by senior officers of Main Roads that the quarter loop options being options 1 and 2 (which options would take the businesses on the Intersection Land if constructed) were the preferred options for the grade separation of the intersection.[59]
[59] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachments RT 18 and 19, 121.
In August 2021, about four weeks before Mr Ward sent this email to Mr Manning, Mr Ward met with Mr and Mrs Trembath on 9 August 2021. In notes of the meeting which appear to have been prepared by either Mr Ward or another person who attended the meeting on behalf of Main Roads it is recorded under the heading, 'Project Status (PW)':[60]
[60] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 8, 64.
·MR is developing a concept for a future interchange at Wanneroo Road – Hepburn Avenue – note: showed Main Roads' Planning Design concept to those present.
·Road reserve has been in place for at least 5 years at this location. Post meeting note: The planning design concept for a grade – separated interchange at Hepburn Avenue and Wanneroo Road does not require any amendments to the existing Metropolitan Region Scheme (MRS) boundary. Both the ultimate planning design and construction of the intersection fall within the current MRS boundary. The MRS boundary for the intersection was endorsed by the West Australian Planning Commission on 3 November 1994.
·Project had been paused several times – currently only have development funding which has to be applied for each year.
·Several concepts are currently under consideration – preferred configuration yet to be developed / determined.
·No funding for construction at this stage and not in the 4 year forward estimates.
·Hypothetically, if construction funding was announced tomorrow the earliest it could start (minimum) is 3 years (subject to construction funding being allocated).
·Currently progressing project development activities including preliminary design and Geotech investigations, hence the correspondence received regarding access to the land.
·Correspondence also sent to Waldecks re access (as required statutorily).
·MR will continue to liaise with landowners re access, noting the issue to be resolved at the current Waldecks site owned by the Trembaths.
·Issues relating to land access/ acquisition at Kingsway SC on the eastern side of Wanneroo Road are currently the subject of arbitration.
·Land acquisition process usually gets underway once construction is confirmed.
Tah Land points out that there was no mention in this meeting with Mr and Mrs Trembath of any immediate need to acquire the Intersection Land or any other land for the purpose of the planning and design of the intersection.

6.4 The relevant provisions of the policies of Main Roads and the Commission that apply to the acquisition of land

Tah Land points out that it is Main Roads stated policy of land acquisition that:[61]
(a)they will discuss their requirements with land owners and occupiers as early as possible prior to project construction. This is generally about two years prior to needing the land, but may vary due to project demands or the availability of funding;
(b)land is acquired by negotiation or formal taking action under the powers contained in the Land Administration Act; and
(c)where roadworks are planned and programmed for a future date, they will initiate land purchases by voluntary negotiations when funding is available. In some cases, where construction is imminent, acquisition may take place by formal taking action.
[61] Further affidavit of Raymond Jin We Tan affirmed 29 September 2022, Attachment RT 13, 101.
It is the Commission's policy that:[62]
(a)it does not acquire reserved lands that will be subject to end use activity occurring within the next two years because a constructing authority will have been required to include the acquisition cost of the subject land in the total construction costs, as part of the capital works funding;
(b)acquisitions of reserved land in the period contained within the statutory provisions under the relevant Acts, continues to be the responsibility of the Commission, Main Roads have in place a lengthy resumption process implemented via the Land Administration Act which requires the issue and determination of notices of intention to take. It is an understanding between the Commission and to Main Roads that in order to shorten the resumption and acquisition time for Main Roads projects, that the Commission will coordinate the resumption approval process under the Planning and Development Act; and
(c)the Commission may delegate its powers to Main Roads where Main Roads requires land to be resumed. (However, the land must be taken by the Commission with the consent of the Governor by the Commission pursuant to s 191 of the Planning and Development Act).
[62] Affidavit of Andrew Thomas Bruce Hawkins sworn 11 November 2022, Attachments AH 11 and 12, 67 ‑ 68.

7.0 Onus – Judicial review

The onus is on an applicant to establish the legal and factual basis for its grounds of review. It is not for the parties seeking to affirm the decision to demonstrate, by way of evidence or inference, that the decision was regularly reached.[63]
[63] Minister for Immigration and Citizenship v SZGUR; [2011] HCA 1; (2011) 241 CLR 594 [67] ‑ [68] (Gummow J) (Heydon & Crennan JJ agreed); Humich Nominees Pty Ltd v Commissioner of Main Roads [2020] WASCA 175 [142].

8.0 Taking land for the purposes of a planning scheme

8.1 General principles

The respondents point out that it is established:
(a)a decision made pursuant to a statutory power will only be invalid for improper purpose if it is established that it was made for a purpose beyond the scope of the relevant Act;[64]
(b)where the relevant power derives from legislation, the purposes for which the power has been conferred will be derived by construing the legislation;[65]
(c)when improper purpose is alleged, it is first necessary to identify the statutory or authorised purposes for which the relevant discretionary power has been given and it is then necessary to identify the purpose in fact of the relevant decision‑maker;[66]
(d)what is relevant is the subjective purpose of the decision‑maker, although that may be inferred from objective factors, including the nature of the decision, the circumstances in which it was made, and its effect.[67] The focus is on the conduct of the decision‑maker;[68]
(e)in the absence of evidence establishing improper purpose or displacing all possible legitimate purposes, it will be presumed that the power was exercised for a purpose falling within the scope of the purposes for which the power was conferred, and an improper purpose will not lightly be inferred;[69] and
(f)the applicant must establish that the improper purpose is a substantial purpose in the sense that the power would not have been exercised but for the desire to achieve the improper purpose.[70] Thus, the improper purpose must be the operative subjective purpose of the decision‑maker

In the notices to enter on land issued to Mr and Mrs Trembath and the others on 13 May 2021, pursuant to s 182 of the Land Administration Act, the author of the notices stated that preparatory feasibility studies and investigation works were required to finalise a preliminary design for the intersection project, that entry into the land for the purposes of the feasibility studies would continue intermittently over the next 24 months and that the first attendance would involve testing of the geological ground conditions at the sites identified in a plan which methodology would entail pushing a steel probe vertically into the ground using a truck mounted rig.[98]
[98] Affidavit of Raymond Jin Wen Tan affirmed 29 September 2022, Annexure RT 7, 58 ‑ 63.
Although it may have been open to Main Roads to issue a notice to Tah Land to enter the Intersection Land to carry out the geological testing and any other planned preliminary works, it is not open to the court to engage in an assessment as to whether the Commission should not have made a taking order because Main Roads had a statutory right to seek access to the Intersection Land pursuant to s 182. To do so, the court would be embarking upon a merits review of the Commission's decision.
When regard is had to these circumstances, Tah Land could not be found to have proved that the decision to take the Intersection Land was so plainly unjust, perverse, illogical or irrational, or was a decision that no reasonable decision‑maker could have made within the scope and purpose of the power to compulsorily acquire land pursuant to s 191. In circumstances where there was planned site investigation work to be carried out on the Intersection Land in 2021, a decision to exercise the power to make a taking order in August 2021 cannot be found to be legally unreasonable.
Tah Land also relies upon the differential treatment between the owners of the Intersection Land (Tah Land) and Mr and Mrs Trembath who own land which is in part reserved for the same purposes as the Intersection Land and has not been compulsorily acquired by the Commission pursuant to s 191 of the Planning and Development Act, to ground its argument that the taking of the Intersection Land was legally unreasonable.
Although, the differential treatment between the treatment of the Intersection Land and the reserved part of land owned by Mr and Mrs Trembath is unexplained it does not follow that the taking of the Intersection Land was legally unreasonable because of the differential treatment.
The Commission makes a submission that in any event there was a reasonable basis for the compulsory acquisition of the Intersection Land but not part of the land that was reserved and owned by Mr and Mrs Trembath because the development approval for the Intersection Land was to expire. It is submitted this factor is a reasonable basis for a differential approach.[99]
[99] ts 112 ‑ 113.
In assessing whether the decision to take the Intersection Land was unreasonable, regard must be had to the scope, purpose and objects of the statutory source of the power to take land pursuant to s 191 of the Planning and Development Act.
Part of the scheme of taking land for the purpose of a planning scheme is that the Commission is to hold the land pursuant to s 196(1) of the Planning and Development Act and subsections (2) and (3) contemplate that if the land compulsorily acquired is subsequently not disposed or alienated in furtherance of the provisions or likely provisions of the relevant region planning scheme (in this matter the MRS), with the consent of the Governor the land can be sold. What can be drawn from this provision is that the statutory scheme contemplates and enables the Commission to compulsorily acquire adjoining or nearby parcels of reserved land from different owners at different times.
The uncontested evidence in these proceedings that at least some of the tenants if not all of them will suffer disruption and economic loss to their businesses if they have to vacate the buildings on the Intersection Land and relocate their businesses is unfortunate, but does not render the taking of the Intersection Land legally unreasonable.
This is because the need to acquire the Intersection Land had been known for considerable period of time. In particular:
(a)it has been known by Tah Land, since 2003 that the development approval for trading on the land was not indefinite and was for a limited period;
(b)the development approval for the conduct of each of the businesses on the Intersection Land was for a limited period and will expire at the end of April 2023; and
(c)each of the tenants who have an interest in the Intersection Land are entitled to compensation pursuant to pt 10 of the Land Administration Act.
For these reasons, Tah Land's claim that the decision to take the Intersection Land was legally unreasonable must fail.

10.0 Was the applicant entitled to procedural fairness after the decision was made to take the land by the Commission and before the Governor gave consent?

10.1 Procedural fairness – Vice regal powers – Statutory construction – A clear intention is required to abrogate the implied condition that attaches to an administrative statutory power

It has been a long established principle that the common law rules of procedural fairness extend to control any administrative decision which is made pursuant to statutory power, in the absence of a clear contrary legislative intention, which directly affects the rights, interests, status or legitimate expectations of a person.[100]
[100] Kioa v West[1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J), 609 (Brennan J).
Thus, the principles of natural justice conditions an administrative statutory power and governs its exercise can only be excluded by plain words of necessary intendment.[101]
[101] Saeed v Minister for Immigration and Citizenship [2010] HCA 23 [13] ‑ [14] (French CJ, Gummow Hayne, Crennan & Kiefel JJ); applying Annetts v McCann (1990) 170 CLR 596.
The Hon Mark Leeming when writing extrajudicially about judicial review of Vice Regal decisions remarked:[102]
[T]he principle that public power should be exercised fairly when it directly affects a person is so deeply embedded in our legal system that clear statutory language is required before the obligation to accord procedural fairness is abrogated, irrespective of the source of power.
[102] Leeming M, 'Judicial Review of Vice-Regal Decisions' (2015) 36 Adelaide Law Review 1, 20.
He then went on to point out that there are some governmental functions that are not subject to the obligations of natural justice:[103]
[O]ne reaches the conclusion that the extent to which judicial review is available turns upon the nature of the power and the directness of its impact upon the rights of the person who claims to have been denied procedural fairness. How that assessment takes place is, perhaps the most interesting and controversial area of analysis – and one that is outside the scope of this paper. It must suffice to say that some powers are so inherently governmental (reserve powers; dismissing a Minister), or general (making a legislative instrument) that it strains notions of procedural fairness to subject their exercise to an enforceable duty. For example, Stewart v Ronalds characterised the advice of a Premier to the Governor that he or she had lost confidence in a Minister as a 'quintessentially political question'. The absence of any duty in such cases was reinforced by the constitutional term that the Minister held office 'during the Governor's pleasure'. Thus it is that 'subject matter immunities provide the core of modern understandings of justiciability'.
[103] Leeming M, 'Judicial Review of Vice-Regal Decisions' (2015) 36 Adelaide Law Review 1, 21 (footnotes omitted).
In one of the leading decisions on the application of the implied condition in respect of the exercise of a vice regal discretionary decisions, Banks v Transport Regulation Board,[104] the Board acting under s 32 of the Transport Regulation Act 1958 (Vict) had determined that a metropolitan taxicab licence be revoked. Pursuant to s 31 of the Transport Regulation Act a decision of the Board granting or refusing to grant any application for a licence was not to have any force or effect until such decision was reviewed by the Governor in Council. In reviewing the decision the Governor in Council was empowered to approve the decision of the Board, disapprove the decision of the Board, or make any determination in the matter which the Board might have made.[105] In respect of the statutory power of review by the Governor in Council, Barwick CJ found that it was quite clear that s 31:
[C]ontemplated that there should be an effective review by the Governor in Council of the Board's decision. This review was substituted for a right of appeal to the Supreme Court (see s. 379 of the Transport Regulations Act 1933 (No. 4198)) and was intended as a real protection to the citizen against unwarranted action on the part of the Board. The statute therefore placed upon the Governor in Council an obligation to consider the matter for himself and to reach a conclusion, upon all the material available to the Board, whether or no the Board's decision should be approved, or disapproved, or whether the circumstances called for some other action on the part of the Council within s. 32(2)(c). The statute did not create, in my opinion, a situation where the Governor in Council could act merely on the recommendation of a Minister: nor was the situation comparable to the conversion of a ministerial or Cabinet decision in point of policy into a decision of the Executive Council. That Council was by the statute given both the power and the duty to consider the matter for itself. In so saying, I fully realize the inconvenience in which a proper consideration of such matters must involve the Governor in Council. But Parliament has taken the course of creating that situation. It cannot be avoided, in my respectful opinion, by mere indorsement of a Minister's recommendation. Of course, certiorari will not go to the Governor in Council but that does not deny that the proceedings of the Governor in Council in performance of a statutory function may be void and in an appropriate case be so declared.
[104] Banks v Transport Regulation Board [1968] HCA 23; (1968) 119 CLR 222.
[105] Banks v Transport Regulation Board [1968] HCA 23; (1968) 119 CLR 222, 240.
In FAI Insurances Ltd v Winneke, it was found the Governor in Council when deciding whether to renew and approve a licence to conduct workers' compensation insurance business, the insurance company should have been given an opportunity by the Governor to make representations before the Governor decided to approve or withhold approval of a licence to carry out business as to schemes of insurance the compensation.[106]
[106] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342; see 388 for the relevant statutory provisions.
In FAI Insurances Ltd v Winneke, Mason J rejected the argument that the Governor in Council was intrinsically unsuited, by reason of its composition and procedures because the Governor in Council could delegate to a committee of its members or to the responsible Minister the function of considering written submissions and reporting to the Governor in Council.[107] In South Australia v O'Shea, Mason CJ referred to this point and then went on to state:[108]
In FAI Insurances it was significant that the decision, that of granting or refusing an application for renewal of a licence was to be made principally, if not exclusively, by reference to considerations relating to the applicant, rather than issues of general policy. It was therefore a decision of a kind usually made by a Minister or statutory officer in which case the duty to act fairly ordinarily applies.
[107] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 369 ‑ 371.
[108] South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, 386.
Gibbs CJ importantly observed in FAI Insurances Ltd v Winneke that in exercising the statutory power the Governor does not act personally or as a representative of the Crown exercising any of its prerogatives, he (or she is to) act on the advice of his (or her) Ministers, and it is expected that such advice be based upon the recommendation of the Minister in charge of the Department concerned.[109]

10.2 Relevant observations made by the Court of Appeal and the High Court in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission[110]

[109] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 349.

[110] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211, (2008) 38 WAR 276; Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2, (2010) 240 CLR 409.

As set out in 8.2 of these reasons, prior to the enactment of the Planning and Development Act, the Town Planning and Development Act was in force. Section 13(2) of the Town Planning and Development Act contained a provision which excluded ss 170 to 175 of the Land Administration Act when reserved land was taken for the purpose of a town planning scheme by the Commission.
In Mandurah Enterprises Pty Ltd v Western Australian Planning Commission, McLure JA observed that the power to make a taking order under s 13 of the Town Planning and Development Act was not subject to the requirements in ss 170 ‑ 175 of the Land Administration Act (which provided for the right to object) because the need for or opportunity to provide public submissions had already been considered or given in the context of making or amending the regional planning scheme.[111] On appeal, the plurality of the High Court found this observation was correct. Their Honours said:[112]
Section 13 of the Planning Act, set out above, permitted the taking of land 'for the purpose of a town planning scheme', here, the PRS. The Court of Appeal (McLure JA, with whom Buss JA and Murray A-JA agreed on this point) concluded correctly that in order to be 'for the purpose of a town planning scheme' the acquisition must be consistent with the terms and effect of the scheme in question. That conclusion was based on the natural and ordinary meaning of the language of s 13, its distinction from s 161 of the Land Act which provided for the acquisition of land for 'the purposes of [a public] work', and the fact that such a construction is consonant with the dispensation of public consultation requirements in ss 170-175 of the Land Act. The legislature dispensed with these requirements due to the fact that the opportunity for objections and public submissions regarding the making or amendment of a regional planning scheme had been conferred through other legislation.
[111] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211, (2008) 38 WAR 276 [45].
[112] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2, (2010) 240 CLR 409 [33] (French CJ, Gummow, Crennan & Bell JJ) (footnotes omitted).
Section 13(2) of the Town Planning and Development Act was inserted into the Town Planning and Development Act by the Town Planning and Development Act Amendment Act 1957 (WA).
In his second reading speech on the Bill for the Town Planning and Development Act Amendment Act, the then Minister made the following clear statement to the effect that that it was not intended that when land was taken under s 13(1) that a person whose interests who were affected would be provided with an opportunity to make objections and be heard on those objections:[113]
The opportunity has also been taken to deal with an anomaly that has arisen in the Town Planning Act following recent amendment to the Public Works Act. Under section 17 of the latter Act any resumption must now be preceded by a notice of intention to purchase and a period for receipt and consideration of objections. However, a resumption, provided for in an approved town planning scheme, has already gone through a period of advertisement for at least three months, and consideration of objections, and the revised Public Works Act is virtually repeating what has already happened. This has resulted in some delay to town planning schemes by local authorities and could have the effect of discouragement. The Bill therefore provides that in respect of a resumption of lend authorised in an approved town planning scheme, Sections 17 and 18A of the Public Works Act, dealing with notices of intention and objections, shall not apply.

10.3 Tah Land's submissions

[113] Western Australia, Parliamentary Debates, Legislative Assembly, 21 November 1957, 3442 (Mr J T Tonkin, Minister for Works). The Public Works Act 1902 (WA) provisions referred to in this speech were repealed and replaced by the land acquisition provisions in the Land Administration Act.

Tah Land argues that the exclusion of the obligation of the Minister to issue a notice of intention to take an interest in land under s 170 of the Land Administration Act by s 191(3) of the Planning and Development Act is insufficient to express with the necessary irresistible clearness an intention to exclude all rights of procedural fairness in connection with the provision of the Governor's consent.
Tah Land argues that by s 191(3) the Commission's power to make a taking order under s 191(1) of the Planning and Development Act was excluded from the operation of ss 166 ‑ 171 and s 180 of the Land Administration Act, including the consultation procedures contained therein because of the need for, or opportunity for, the provision of public submissions in the context of making or amending a planning scheme. However, it by no means follows that the Governor's power to consent to the taking order, on which consent the making of the order is conditioned, is relieved of any procedural fairness obligations.
At the hearing of this application, Tah Land argued that the exclusion in s 191(3) of the Planning and Development Act is narrower than that in s 13 of the Town Planning and Development Act considered in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission, and does not exclude the right to make submissions in s 175. For the reasons that I have already given in [57] ‑ [60] of these reasons, this submission cannot be accepted. When the express provisions of s 175 are examined in their statutory context, it is clear that s 175 does not apply when the Commission makes a decision to take land pursuant to s 191. The effect of these findings is that a right to a hearing by the Minister pursuant to s 175 is excluded in respect of the taking of the Intersection Land. It is to be noted that Tah Land concedes that the taking of land pursuant to s 191 is reposed in a responsible authority and not the Minister.[114]
[114] Applicant's written submissions dated 22 November 2022, par 55.
It is said that it cannot be inferred that the legislature intended to extinguish all rights of procedural fairness of a person whose land is the subject of a taking order. In particular, the period of time between the reservation of land under a planning scheme and the making of a taking order might be protracted. In this matter, it was approximately 30 years. Thus, the circumstances, including those affecting land use and planning, can change radically in such period. Consequently, Tah Land argues that the proposition that the right to be heard in relation to the reservation of land under a planning scheme 30 years ago is an inadequate substitute for the observance of the rules of procedural fairness in relation to a taking order made today and should not be accepted.
In addition, it is argued that if Parliament had intended to exclude obligations of procedural fairness from the power of the Governor to consent to the making of a taking order under s 191, the natural and obvious course for it would have been to say so expressly. Parliament's failure to do so is telling and points against the inference that the rules of procedural fairness are abrogated.

Tah Land submits that the fact that the power to consent to the making of a taking order by the Commission is vested in the Governor in Council is not a basis to exclude rights of natural justice. In particular, that the obligations of natural justice must be discharged by those on whose advice the Governor acts. In support of its submission on this point it relies upon the observations set out above in Banks v Transport Regulation Board and FAI Insurances Ltd v Winneke.
Tah Land points out that the material put before the Minister to recommend that she seek the Governor's consent under s 191(1) of the Planning and Development Act to a taking order being made in relation to the Intersection Land, and the material put before the Governor‑in‑Council to explain why the Governor should provide that consent, are the briefing note to the Minister dated 14 September 2021 and the Executive Council Explanatory Note also dated 14 September 2021. It is only in those documents in which there might be found evidence of proper, real and genuine consideration (or an active intellectual process) concerning whether the Governor's consent should be provided to a taking order over the Intersection Land.
Tah Land says that what is notable about those documents is that the passages directed to explaining why the Taking Order should be made over the Intersection Land are merely lifted, with no or little amendment, from the relevant passages from the Executive Finance and Property Committee report. That is, the Briefing Note to the Minister and the Executive Council Explanatory Note, both dated 14 September 2021, bear no indication that any fresh, independent or active intellectual consideration of whether a taking order should be made over the Intersection Land beyond the mere recitation, word for word, of what the Commission asserted in the report.
Tah Land says that the irresistible inference is open that in this matter the process by which the Governor's consent to the issue of the Taking Order over the Intersection Land under s 191(1) of the Planning and Development Act fell well short of the an effective review by the Governor in Council of the Commission's decision to make a Taking Order over the Intersection Land, which review is necessary 'as a real protection to the citizen against unwarranted action' by the Commission, to adapt the language of Barwick CJ in Banks v Transport Regulation Board.[115]
[115] Banks v Transport Regulation Board [1968] HCA 23; (1968) 119 CLR 222, 241.
Tah Land argues that the obligations of procedural fairness attending the power of the Governor to consent to the making of a Taking Order under s 191(1) of the Planning and Development Act involve, relevantly, not only an obligation to permit and receive submissions from the person whose land is subject to the proposed Taking Order, but also affect the nature of the consideration which the Governor (through his Ministerial advisers) must bring to that material and to whether the consent which is sought should be given. In particular, the requirements of procedural fairness require the Governor (through his Ministerial advisers) to bring proper, real and genuine consideration to that material and whether consent should be given; or, to put it another way, to apply an active intellectual process to that material and whether consent should be given.

10.4 Disposition ‑ Procedural fairness abrogated by the scheme that applies to the compulsory taking of reserved land pursuant to s 191 of the Planning and Development Act

Pursuant to s 60 of the Interpretation Act 1984 (WA), where in a written law the Governor is authorised or required to do any act, matter, or thing, it shall be taken to mean that such act, matter, or thing may or shall be done by the Governor with the advice and consent of the Executive Council.
The respondents contend that the statutory scheme of the taking of reserved land pursuant to s 191 of the Planning and Development Act provides only a right to be heard when the land is reserved and there is no further opportunity to object or be heard in relation to the compulsory acquisition, and a person whose land is reserved is entitled to compensation if their land is compulsory acquired. In particular, the respondents argue that the requirement for the Governor's consent to a decision of the Commission does not give rise to an additional opportunity be heard on whether the land should be taken.
However, if the court determines that the Governor had an obligation to receive and consider submissions by Tah Land prior to giving consent to the compulsory acquisition of the subject land by the Commission, the respondents concede that this obligation was not complied with.
It cannot be suggested that the condition of the power to take land pursuant to s 191 of the Planning and Development Act, is an inherently governmental function, such as the legislative power to make regulations, that the rules of procedural fairness should not apply. The respondents do, however, argue that the Minister for Planning in this matter in advising the Governor as to the giving or withholding of consent, was able to consider broader public interest considerations. Tah Land rejects that contention and says there is no reason to confine the scope of the matters which might influence whether the Governor's consent should be given so as to exclude those concerned with the private interests of land holders affected by a taking order.
I do not accept Tah Land's submission on this point. Although whether consent should be given or withheld by the Governor acting on the advice of Executive Council would necessarily encompass consideration of the private interests of landholders and others such as their tenants, the purpose of the taking of land pursuant to s 191 of the Planning and Development Act is for a planning scheme. Planning schemes are made for the orderly and proper planning of development in communities within the geographical scope of the particular scheme in question. Orderly and proper planning of development is always a matter of interest of the public.
In construing whether the rules of procedural fairness are abrogated by the operation of s 191 within its statutory context, regard must be had to the scope of the function of the Governor in an exercise of the power conferred by s 191. In particular, that the decision‑maker to take the land is the Commission, and the Governor (in Executive Council) is not conferred with an independent power of review of that decision but only a power to either consent or not consent to the decision of the Commission.
The power of the Governor to consent must necessarily be contrasted with a power of review of a decision by an administrative decision maker which power of review would in the absence of a clear statutory intention require that a person be accorded procedural fairness if their rights, interests, status or legitimate expectations will be directly affected by the decision made in the review. Pursuant to s 191(1), the Governor acting on the advice of the Executive Council must only determine whether to consent or not consent to the decision of the Commission to compulsory acquire land.
In support of its submissions, Tah Land refers to particular observations made in a number of authorities[116] which set out the requirements of the obligations of procedural fairness which authorities are not relevant because in each matter the court was considering decisions made under a statutory scheme relating to migration in which it was not in dispute that the rules of procedural fairness clearly condition the power in question and these authorities did not consider whether the rules of procedural fairness had been abrogated by the statutory scheme.
[116] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 325 [31] ‑ [45] (Griffiths, White & Bromwich JJ); Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 [3] (Allsop CJ); CAR 15 v Minister for Immigration and Border Protection [2019] FCAFC 155 [76] (Allsop CJ, Kenny & Snaden JJ).
In circumstances where:
(a)the statutory scheme excludes any requirement to issue notice of a taking order, and for the Commission or the Minister to provide the landowner or any other person who has an interest in the land with the right to object and to be heard prior to the Commission making a decision to take reserved land pursuant to s 191(1) of the Planning and Development Act; and
(b)the only condition to perfect the decision of the Commission to take reserved land is that the Governor acting on the advice of Executive Council must provide consent, which decision to consent or not to consent is not a power to review in the sense of a de novo review; and
(c)where the scheme for the reservation of land for the purpose of a planning scheme was effected either under the repealed provisions of the Town Planning and Development Act or the Planning and Development Act is such that it is subject to the consultation process, which process enables public submissions and the opportunity for persons to make objections and for those objections to be considered prior to an amendment being made to the planning scheme to reserve land, which scheme or amendment to effect of reservation is subject to disallowance by either House of Parliament;
as the respondents point out, the statutory scheme is such that the right to make objections and be heard as to the potential compulsory acquisition land required for the purposes of a planning scheme is at the stage of reservation.
The scheme of compulsorily acquiring land for the purposes of a planning scheme is such that there is no right to be heard further as to whether reserved land should be compulsorily acquired. In this matter, when Tah Land was given notice of the scheme amendment to the MRS to reserve the Intersection Land, it had notice of an intention that the land would be purchased or compulsorily acquired at some time in the future. When that notice was given, Tah Land was afforded an opportunity to object and their objections considered prior to the decision being made to effect the amendment to the MRS.
It would be an odd result of the statutory scheme if the Commission were not required to provide procedural fairness to a person whose proprietary rights are affected by a decision to take reserved land, before the Commission made a decision to take that land, whereas the Governor who is not required to conduct a review of the Commission's decision would be required to provide procedural fairness to a person whose proprietary interests are affected by the giving of consent to the Commission's decision. As senior counsel for the respondents point out, such construction would contradict the express exclusion of the notice of intention to take process to particular persons including persons who have a proprietary interest in the land, when land is compulsorily acquired pursuant to s 191(1) of the Planning and Development Act.
The fact that 30 years have elapsed since the Intersection Land was reserved and the decision to make the Taking Order was made by the Commission, does not bear upon the proper construction of the statutory scheme. This is because the nature of the scheme as reflected in s 196 of the Planning and Development Act expressly contemplates that reserved land can be acquired and held by the Commission, and that the requirements of a planning scheme can change over time which may result in the reserved land compulsorily required not being required (for the purpose for which it was taken).

11.0 Conclusion

For these reasons, I am not satisfied that any of the applicants grounds for judicial review have been established. The application should be dismissed.

Annexure A

Annexure B

Annexure C

Annexure D

Annexure E

Annexure F

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Honourable Justice Smith
17 FEBRUARY 2023