Wrestpoint Nominees Pty Ltd v City of Armadale - [2022] WASC 366

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   WRESTPOINT NOMINEES PTY LTD -v- CITY OF ARMADALE [2022] WASC 366
CORAM:   SMITH J
HEARD:   12 AUGUST 2022
DELIVERED          :   2 NOVEMBER 2022
FILE NO/S:   CIV 2317 of 2021
BETWEEN:   WRESTPOINT NOMINEES PTY LTD
Applicant
AND
CITY OF ARMADALE
Respondent

Catchwords:

Administrative Law - Judicial review - Application for writs of certiorari and mandamus on grounds of jurisdictional error - Whether the applicant has standing to apply for the exercise of discretion to issue a writ

Statutory construction - Whether a decision made under s 331B of the Local Government Act 1960 (WA) to place obstructions in a street or way for the purpose of prohibiting the movement of vehicular traffic continued to have force and effect after 1 July 2002

Statutory construction - Whether decision made under s 331B of the Local Government Act 1960 'subsidiary legislation' for the purposes of s 9.71 of the Local Government Act 1995 (WA) as defined in s 5 of the Interpretation Act 1984 (WA)

Statutory construction - Effect of repeal of s 331B of the Local Government Act 1960 by the Local Government Act 1995 and transitional provisions of the Local Government Act 1995 and reg 6 of the Local Government (Functions and General Regulations) 1996 (WA) - Effect of s 37(1)(b), (c) and (2) and s 38 of the Interpretation Act on the operation of s 331B following repeal

Statutory construction - Meaning of the words 'for a period exceeding 4 weeks' within the meaning of s 3.50 of the Local Government Act 1995 - Whether an order made under s 3.50 can operate indefinitely or to be effective must identify a certain division or portion of time - Whether consideration should be given to extrinsic material found in second reading speech and explanatory memorandum

Statutory construction - Whether an order made pursuant to s 3.50 of the Local Government Act 1995 can be made when the thoroughfare in question was in fact closed

Legislation:

Interpretation Act 1984 (WA)
Local Government (Functions and General Regulations) 1996 (WA)
Local Government Act 1960 (WA)
Local Government Act 1995 (WA)
Local Government (Administration) Regulations 1996 (WA)
Local Amendment Bill 2003 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr O'Meara SC and Mr M Hotchkin
Respondent	:	Mr T Houweling and Ms B Waugh

Solicitors:

Applicant	:	Hotchkin Hanly
Respondent	:	Cornerstone Legal

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

Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269
Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493
Bird v John Sharp & Sons Pty Ltd [1942] HCA 27; (1942) 66 CLR 233
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153
Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Martin v Nalder [2016] WASC 138
Parker v City of Rockingham [2021] WASCA 120
Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208
R v Nicholson [1899] 2 QB 455
Re Environmental Protection Authority; Ex parte Tallott [2016] WASC 190
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372
S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191
Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66; (2014) 313 ALR 184
Tallott v City of Stirling [2017] WASCA 126
The Commissioner of Police v Ferguson [2019] WASCA 14; (2019) 54 WAR 177
Tsang v Francis [2021] WASCA 131
WA Field & Game Association Inc v Pearce (1992) 8 WAR 64
Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482

Table of Contents

1.0 The application for judicial review

2.0 Background

3.0 A summary of the issues raised by the applicant and the respondent, and the result

4.0 Standing – Applicant has a special interest in the closure of the Jull Street Mall

5.0 What was the effect of the order made under s 331B of the 1960 Act after 30 June 2002?

5.1 The legislative framework of the 1960 Act

5.2 The legislative framework of the 1995 Act as first enacted by Act No 74 of 1995

5.2.1 The enactment of s 3.50 of the 1995 Act

5.2.2 The general regulation making power and transitional regulation making power under the 1995 Act and Schedule 9.1

5.3 Regulation 6 of the 1996 Regulations

5.4 The parties' submissions about the effect of the enactment of the regulation making powers and the transitional provisions of the 1995 Act and reg 6

5.5 Disposition – Regulation 6 of the 1996 Regulations applied to the decision made pursuant to s 331B to prohibit the movement of vehicular traffic in the Jull Street Mall

5.5.1 The source of the power to make reg 6 of the 1996 Regulations

5.5.2 The obstruction of Jull Street, made pursuant to s 331B of the 1960 Act, was subsidiary legislation made under the 1960 Act

5.5.3 Effect of repeal of empowering provision on subsidiary legislation

6.0 The effect of the order made on 28 June 2021 to close of the portion of Jull Street that comprises the Jull Street Mall

6.1 The legislative history of s 3.50 of the 1995 Act

6.2 The parties' submissions as to the validity of the order made on 28 June 2021 and the proper construction of s 3.50

6.2.1 The applicant's submissions

6.2.2 The respondent's submissions

6.3 Relevant principles of construction of statutes

6.4 Disposition – The order to close the Jull Street Mall on 28 June 2021 was authorised by s 3.50

7.0 Conclusion

SMITH J:

1.0 The application for judicial review

The applicant applies for judicial review of a decision, by the respondent, pursuant to s 3.50 of the Local Government Act 1995 (WA) (1995 Act), on 28 June 2021, closing a portion of Jull Street, Armadale (as identified on an attached plan) (Jull Street Mall) to the passage of vehicles.
The applicant claims that the respondent misconstrued the power conferred upon it by s 3.50 of the 1995 Act and applies for:
(a)a writ of certiorari quashing the respondent's resolution which purportedly took effect as an order to close the Jull Street Mall to vehicular traffic; and
(b)a writ of mandamus requiring the respondent to act in accordance with its public duty under s 3.21(1)(a) of the 1995 Act to ensure that Jull Street Mall is not obstructed to vehicular traffic, unless lawfully closed.

2.0 Background

The Jull Street Mall has been continually closed to vehicular traffic from about 1985.
The Jull Street Mall was created by the respondent following a resolution made in 1984 to place obstructions in Jull Street for the purpose of prohibiting the movement of vehicular traffic pursuant to s 331B of the Local Government Act 1960 (WA) (1960 Act) which resolution took effect on the approval by the Minister for Local Government on 10 April 1985 (the 1985 decision).[1]
[1] Affidavit of Michelle Brooke Todd sworn 14 February 2022, Attachment MT 9, 37.
It is common ground that:
(a)the 1985 decision continued to have effect until the coming into operation of the 1995 Act; and
(b)the effect of the 1985 decision was not reviewed by the respondent until sometime in early 2021.
On 28 June 2021 at an ordinary meeting of council, the respondent resolved, pursuant to s 3.50 of the 1995 Act, to order the closure of the Jull Street Mall to the passage of vehicles.
At the heart of this application for judicial review is an argument by the applicant that:
(a)by operation of reg 6 of the Local Government (Functions and General) Regulations 1996 (WA) (1996 Regulations), the 1985 decision was deemed to be an order to close a thoroughfare under s 3.50 of the 1995 Act, and the order expired on 30 June 2002;
(b)since 1 July 2002, the closure of the portion of Jull Street that comprises the Jull Street Mall is unlawful; and
(c)the order made by the respondent by resolution on 28 June 2021 was not authorised by s 3.50 of the 1995 Act.
The applicant seeks a writ of certiorari to quash the order made on 28 June 2021, and the issue of a writ of mandamus directing the respondent to remove the obstructions to traffic from the Jull Street Mall, thereby ensuring the movement of traffic in this portion of Jull Street.
Although the respondent did not review the effect of the 1985 decision until sometime in early 2021, in the period that elapsed since the closure of the mall in 1985 and 2021, the respondent has conducted a number of workshops and considered a number of reports and recommendations about the design of the city centre of Armadale, including considering recommendations and petitions for the re‑opening of the Jull Street Mall.[2]
[2] See the summary in par 9 of the Affidavit of Mark John Barboutis sworn 7 December 2021, 3.
The works carried out in or about 1985 to physically create the Jull Street Mall were substantial. Kerbs and bollards were installed at either end and signage was placed marking each entrance to the mall. The mall surface was paved, seats and feature lighting were installed, and trees were planted.[3] In a Technical Services Committee report of council dated 3 March 2021, the capital cost for re‑opening the Jull Street Mall was estimated to be between $1,444,700 and $1,976,000. The cost of the works included the relocation of some large trees and other substantial works. The variation between the cost estimates depended upon whether the street was to be opened two ways or one way.[4]
[3] Affidavit of Michelle Brooke Todd sworn 14 February 2022, par 23, 7.
[4] Affidavit of Mark John Barboutis sworn 7 December 2021, Attachment MB 4, 47.
In or about early 2021, after the respondent received advice from its former lawyers about the effect of the 1985 decision, the respondent took steps to make an order under the 1995 Act to close the Jull Street Mall.
Before it made an order, the Technical Services Committee of the council of the respondent resolved on 17 March 2021 to:[5]
[5] Affidavit of Mark John Barboutis sworn 7 December 2021, Attachment MB 4, 56 ‑ 57.
1.Direct the preparation of a Community Engagement Plan to be considered by Council to determine the community's view on whether to:
i.Open Jull Street Mall to one-way traffic
iiOpen Jull Street Mall to two-way traffic
iiiRetain Jull Street Mall as a public pedestrian and civic space
The community engagement plan is to contain the wording and images to be used to explain each option – inclusive of costs, anticipated benefits and impacts.
…
7.In-accordance with Section 3.50 of the Local Government Act 1995, give local public notice of the intention to order that a portion of Jull Street (the thoroughfare) as identified on the Attached Plan (Attachment 5) be closed to the passage of vehicles to address the technicality of the original order for its permanent closure having expired. This will retain the status quo until such time as the community engagement process for the 3 options described in part 1 of this resolution have been conducted and a final determination considered by Council.
In accordance with resolution 7, the respondent gave local public notice of its intention by a public notice dated 6 April 2017 as follows:[6]
PUBLIC NOTICE - UNDER SECTION 3.50 LOCAL GOVERNMENT ACT 1995 - JULL STREET MALL CLOSURE
A portion of Jull Street has been closed since 1992 to create the Jull Street pedestrian mall. That closure has expired. Pursuant to Section 3.50 of the Local Government Act 1995, the City gives notice of the continued closure of that portion of Jull Street as shown in the attached location plan to the passage of vehicles to retain the current status quo until such time as Council decides otherwise. The City will be undertaking a separate Community Engagement process to seek feedback on whether to open the mall to traffic or keep it as a pedestrian mall.
A copy of the full Council report is available on the City's website at the following link may be made to the Chief Executive Officer, City of Armadale Locked Bag No. 2 Armadale WA 6992 or [email protected] by no later than 11 May 2021.
[6] Affidavit of Michelle Brooke Todd sworn 14 February 2022, Attachment MT 13, 43.
As required by s 3.50(4)(b)(ii) of the 1995 Act, a copy of the local public notice was given to the applicant and other landowners[7] as persons who own land that is prescribed for the purposes of this provision, pursuant to reg 4(1)(d) of the 1996 Regulations.[8]
[7] Affidavit of Michelle Brooke Todd sworn 14 February 2022, par 37 and Attachments MT 17 and MT 18, 49 ‑ 51.
[8] Pursuant to reg 4(2) of the Local Government (Functions and General) Regulations 1996 (WA), the land that is prescribed for the purposes of s 3.50 is land that will lose its access. In reg 4(3), land that will lose its access in reg 4 is defined to mean land that abuts the thoroughfare at any point to which access would be precluded as a result of the closure.
As required by s 3.50(5) of the 1995 Act, the respondent also sent a copy of the contents of the local public notice to the Commissioner of Main Roads.[9]
[9] Affidavit of Michelle Brooke Todd sworn 14 February 2022, Attachment MT 19, 52.
On 28 June 2021, at an ordinary meeting of council, the respondent passed the following resolutions, the first of which is the subject of this application for judicial review:[10]
1.Pursuant to Section 3.50 of Local Government Act 1995, order the closure of a portion of Jull Street (the thoroughfare) as identified on the Attached Plan (Attachment 2.1.1) to the passage of vehicles.
2.Refer the review of the draft Community Engagement Plan to the Standing Orders & House Advisory Group (SOHAG) to refine for presentation to Council the content, scope of consultation and timing of engagement, with particular consideration of the availability of MetroNet's Precinct Plan and designs for the new Armadale Railway Station, Viaduct, additional road connections and proposed interface with Jull Street and surrounding areas.
…
[10] Affidavit of Mark John Barboutis sworn 7 December 2021, Attachment MB 5, 59.
By letter dated 20 July 2021, the applicant was given notice of the resolutions made by council at its meeting on 28 June 2021 by the respondent.[11]
[11] Affidavit of Mark John Barboutis sworn 7 December 2021, Attachment MB 6, 60.

3.0 A summary of the issues raised by the applicant and the respondent, and the result

The applicant says there are five issues to be determined, which are:
(a)Does the applicant have standing to bring the application for judicial review?
(b)Was the order made under s 331B of the 1960 Act, to place obstructions in Jull Street for the purpose of prohibiting the movement of vehicular traffic, converted by reg 6 of the 1996 Regulations (reg 6) into an order under s 3.50 of the 1995 Act, closing the Jull Street Mall to the passage of vehicles, with a sunset of no later than 30 June 2002?
(c)Was the order made on 28 June 2021 purporting to close Jull Street Mall under s 3.50 of the 1995 Act affected by jurisdictional error?
(d)If the order made on 28 June 2021 was affected by jurisdictional error, was the error material?
(e)If jurisdictional error is established, should the court in its discretion decline to grant mandamus?
The respondent claims that the applicant's case must fail because:
(a)it fails to address or satisfy the question of standing in the case of certiorari as a discretionary factor, and in the case of mandamus a mandatory factor;
(b)the application is misconceived because the transitional provisions for the purpose of the 1995 Act and reg 6 coming into operation did not operate to affect the 1985 decision which was complete by 1985, and the indefinite effect of the 1985 decision was saved by operation of s 37 of the Interpretation Act 1984 (WA); and
(c)even if jurisdictional error is established, discretionary factors count against the grant of either a writ of certiorari or mandamus.
For the reasons given below:
(a)the applicant has satisfied the court that it has standing to bring an application for a writ of certiorari or mandamus;
(b)the operation of the 1985 decision made under s 331B of the 1960 Act, on the coming into operation of the 1995 Act, was deemed to be an order under s 3.50 of the 1995 Act, which order ceased to have effect on 30 June 2002, pursuant to reg 6(2);
(c)the order made by resolution of council on 28 June 2021 to close the Jull Street Mall to the passage of vehicles was authorised by s 3.50 of the 1995 Act; and
(d)the application for judicial review should be dismissed.

4.0 Standing – Applicant has a special interest in the closure of the Jull Street Mall

An applicant does not need to establish standing to bring an application for a writ of certiorari.[12]
[12] Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269 [56] ‑ [67] (Pritchard J); applied in S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191 [9] (Pritchard J).
However, in the absence of any interest in, or connection to, the decision under review on the part of the applicant for relief, the fact that the applicant for the writ is a stranger to the decision will be relevant to the exercise of the court's discretion whether to issue the writ by considering whether the interest of the applicant is so small, or his grievance so like that of the rest of the interests of the public, as to leave no sufficient ground for the issue of the writ.[13]
[13] Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269 [66] (Pritchard J), applying Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 [109] (McHugh J), citing R v Nicholson [1899] 2 QB 455, 472.
An additional factor (which is not relevant in this particular matter) is if a stranger is an applicant and the parties to the decision do not seek to disturb the decision under review, that will be a factor that weighs in favour of the exercise of discretion against the issue of certiorari.[14]

[14] Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269 [67] (Pritchard J), referring to Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 [124] (McHugh J), [229] (Kirby J); Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482, 499, 501 (Isaacs & Rich JJ).

Where an applicant seeks the grant of a writ of mandamus, the applicant must demonstrate standing to do so. Order 56, r 15(1) of the Rules of the Supreme Court 1971 (WA) provides that a writ of mandamus, or for relief of a like nature, shall be granted only on the application of a person who is interested in the relief sought. A person who is interested in the relief sought has been interpreted to be a person with a sufficient interest,[15] or a special interest.[16]
[15] Re Environmental Protection Authority; Ex parte Tallott [2016] WASC 190 [7] (Le Miere J).
[16] WA Field & Game Association Inc v Pearce (1992) 8 WAR 64, 70 (Malcolm CJ); Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493; applied in Martin v Nalder [2016] WASC 138 [39] (Tottle J).
In S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale, Pritchard J explained what constitutes a special interest in the relief sought (in the context of an application for declaratory relief) as follows:[17]
Absent a statutory right of action, a plaintiff will have no standing to bring an action for such relief if he or she has no interest in the subject matter of the action beyond that of any other member of the public. If no private right of the plaintiff is interfered with, the plaintiff must have a 'special interest' in the subject matter of the action. It is not necessary that that interest be unique to the plaintiff.
The requirement for a 'special interest' is a flexible one. It is a matter of fact and degree, and will depend on the nature and subject matter of the litigation, including the legislation relevant to the decision. It will involve an assessment of the importance of the concern held by the plaintiff with regard to a particular subject matter and the closeness of the plaintiff's relationship to that subject matter. Consequently, what is a sufficient interest in one case may be less than sufficient in another.
[17] S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191 [10] ‑ [11] (footnotes omitted).

Adjoining landowners to planning decisions usually have standing to challenge planning decisions affecting neighbouring land.[18]
[18] Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493, 530, 543; (Gibbs J); Coast Ward Ratepayers Association (Inc) v Town of Cambridge[2016] WASC 239 [83] ‑ [87] (Pritchard J).
The applicant is the registered proprietor of Lot 50 on Diagram 80349, Certificate of Title volume 1915, folio 18 (the Land). The Land is situated on the corner of Third Road and immediately adjoining the part of Jull Street that comprises the Jull Street Mall.[19]
[19] Affidavit of Mark John Barboutis sworn 7 December 2021, pars 4 ‑ 5 and Attachments MB 2 and MB 3, 14 ‑ 15.
The applicant operates a licensed sports bar and bottle shop on the Land under the name 'The Dale'. The applicant's director and secretary, Mark John Barboutis, is a member of a group of business owners called 'Reconnect Jull Street'. This business group has made regular submissions over the last several years to the respondent about re‑opening the Jull Street Mall to one‑way traffic as a means of mitigating antisocial behaviour that nearby businesses have experienced from persons who gather in the mall.
The respondent claims that the applicant cannot show that it has a special interest. Although the aim of the applicant is to see the re‑opening of Jull Street Mall to vehicular traffic, the respondent contends this aim is merely the purpose of the application, but it does not rise to a special interest beyond that of members of the public generally.
I do not agree, as the applicant points out in its reply submissions:
(a)as an immediate neighbour to the Jull Street Mall, the applicant claims that it has suffered an adverse impact on amenity on its business from antisocial behaviour by persons who gather in the mall. Irrespective, of whether opening the mall would cure or mitigate this problem, it is a sufficient basis to establish a special interest; and
(b)as the registered proprietor of land adjacent to a thoroughfare providing pedestrian access, and/or vehicular access to the applicant's business of a sports bar and bottle shop it operates for patrons wishing to purchase and consume liquor, the applicant has a special interest in whether or not the part of the road reserve immediately proximate to it should be open to traffic or not, as it is a means by which potential patrons of the business could come and go to transact business.
It cannot be disputed that antisocial behaviour has been occurring in the Jull Street Mall. The matters stated in the Technical Services Committee report to the respondent's make it clear that adjoining businesses have suffered from the effect of antisocial behaviour from persons who gather in the Jull Street Mall. It is noted, however, the Technical Services Committee report indicates that re‑opening the Jull Street Mall would be unlikely to significantly increase trading levels of the adjacent businesses.[20] Whether that is so or not is not a matter that is relevant to be considered in an application for judicial review.
[20] Affidavit of Mark John Barboutis sworn 7 December 2021, Attachment MB4, 46.
For these reasons, the applicant has an interest in whether the portion of the thoroughfare that comprises the Jull Street Mall is lawfully closed, which interest can properly be characterised as an interest beyond any interest by any other member of the public in this subject matter.

5.0 What was the effect of the order made under s 331B of the 1960 Act after 30 June 2002?

5.1 The legislative framework of the 1960 Act

At the time the Minister for Local Government gave his approval for the council to place obstructions in the Jull Street Mall for the purpose of prohibiting the movement of vehicular traffic on 10 April 1985, the legislative provisions that provided for the power to place or construct obstructions in a street or way were set out in div 6 of pt XII of the 1960 Act.
Relevantly, s 331(1) imposed a duty on a council in town sites to open and keep open for public use and free from obstruction, surveyed and reserved streets or declared ways as being required for public traffic. Pursuant to s 332 it was an offence for a person to wilfully and unlawfully obstruct a street or way.
The 1960 Act provided for three exceptions to the obligation to keep streets open for public use required for public traffic, and free from obstructions.
The first exception was found in s 331A.
Section 331A provided that, notwithstanding s 331, a council may close any street or portion thereof for the conducting of experiments and tests for the purpose of more efficiently regulating traffic and providing suitable places or facilities for parking or standing of vehicles. Closure for this purpose was allowed under this provision for a continuous period of 14 days. Any continuous period exceeding 14 days required the prior approval of the Minister in writing.
The second exception was found in s 331B.
Section 331B(1) provided:
Notwithstanding section three hundred and thirty-one, but subject to this section, a council may, with the approval of the Minister, construct or place any obstruction in a street or way for the purpose of prohibiting the movement of vehicular traffic.
Section 331B(2) to (6) provided for the procedural steps to be taken by the council prior to making a resolution to exercise the power conferred in subsection (1) and the power of the Minister to approve the obstruction. These steps required the publication of notices, the requirement for the council to consider objections before forwarding its report to the Minister and a requirement for the written consent of the Minister responsible for the administration of the Road Traffic Act 1974 (WA), before the Minister could approve the proposal to place any obstruction in a street. Subsection (7) was a transitional provision which dealt with notices of obstruction to a street or way prior to the coming into operation of Act number 30 of 1976 which inserted s 331B into the 1960 Act.
Subsections (2) to (7) of s 331B provided:
(2)Where a council resolves to exercise the power conferred by subsection (1) of this section it shall cause to be published notice of the proposal specifying the situation of the obstruction and the manner in which it is proposed to prohibit the movement of vehicular traffic in the street or way.
(3)The notice referred to in subsection (2) of this section shall be published in a newspaper circulating in the district and shall state that a person who desires to object to the proposal may deliver written grounds of his objection to the council within thirty‑five days from the date of publication.
(4)The council shall consider all objections duly made and shall, if, after considering the objections, it is still of the opinion that the street or way should be obstructed in the manner set out in the notice, forward particulars of the proposal, together with the objections received by it and its report thereon, to the Minister.
(5)The Minister shall not approve of a proposal submitted to him under subsection (4) of this section unless he has obtained the written consent of the Minister to whom the administration of the Road Traffic Act 1974, is for the time being committed by the Governor.
(6)If the Minister approves of the proposal he shall by notice in writing notify the council of his approval.
(7)Where before the coming into operation of the Local Government Act Amendment Act (No. 4) 1976 -
(a)a council and the Minister have, pursuant to section three hundred and thirty-one of this Act, decided that a street or way is not required for public traffic; and
(b)the Minister has caused notice to be published in the Government Gazette of a decision so made; and
(c)the council has placed or constructed an obstruction in that street or way, that obstruction shall be deemed to be, and to have always been, validly placed or constructed in that street or way.
The power to construct or place any obstructions in a street for the purpose of prohibiting the movement of vehicular traffic in s 331B was not restricted to any particular period of time.
The third exception was found in s 334.
An order could be made by the Governor pursuant to s 334 to temporarily close a street or way under the care, control and management of the council, on application by the council, if the Governor formed the opinion that the street or way was not required as a public thoroughfare and its closure would not inconvenience the public. Although this provision only empowered temporary closure of a street, pursuant to subsection (4), with the consent of the Minister and by public tender the land comprised in the street or way could be let from week to week.

5.2 The legislative framework of the 1995 Act as first enacted by Act No 74 of 1995

5.2.1 The enactment of s 3.50 of the 1995 Act

The provisions of the 1960 Act were substantially repealed by the 1995 Act on its coming into operation on 1 July 1996. In particular, and the power conferred on a local government with the approval of the Minister to construct or place obstructions on a street or way pursuant to s 331B of the 1960 Act was repealed by cl 8(2)(b) of sch 9.2 of the 1995 Act, by the repeal of div 6 of pt XII of the 1960 Act.
Under the 1995 Act, the power of a local government to construct or place obstructions in a street or way for the purpose of prohibiting vehicular traffic was re‑enacted with modifications by the enactment of s 3.50 of the 1995 Act.
At the time that the 1995 Act was first enacted, s 3.50 provided:
3.50. Closing certain thoroughfares to vehicles
(1)A local government may, by local public notice, order that a thoroughfare that it manages is wholly or partially closed to the passage of vehicles.
(2)The order may limit the closure to vehicles of any class, to particular times, or to such other case or class of case as may be specified in the order and may contain exceptions.
(3)The order cannot be made to have effect beyond one year after the first day when it has effect, but this subsection does not prevent the making of another order that continues the closure of the thoroughfare.
(4)Before it makes an order wholly or partially closing a thoroughfare to the passage of vehicles for a period exceeding 4 weeks or continuing the closure of a thoroughfare, the local government is to —
(a)give local public notice of the proposed order giving details of the proposal, including the location of the thoroughfare and where, when, and why it would be closed, and inviting submissions from any person who wishes to make a submission;
(b)give written notice to each person who —
(i)is prescribed for the purposes of this section; or
(ii)owns land that is prescribed for the purposes of this section; and
(c)allow a reasonable time for submissions to be made and consider any submissions made.
(5)The local government is to send to the Traffic Board constituted under the Road Traffic Act 1974 a copy of the contents of the notice required by subsection (4) (a).
(6)An order under this section has effect according to its terms, but may be revoked by the local government, or by the Minister, by order of which local public notice is given.
(7)This section does not prevent the temporary closure of a thoroughfare, without giving local public notice, to the extent that the closure may be required in circumstances in which it may be impracticable to give local public notice before closing the thoroughfare.
(8)If, under subsection (7), a thoroughfare is closed without giving local public notice, the local government is to give local public notice of the closure as soon as practicable after the thoroughfare is closed.
When the 1995 Act was first enacted, the power conferred by s 3.50 in 1995 did not enable the closure of a thoroughfare[21] indefinitely but instead enabled the closure of a thoroughfare only for a period of up to one year after giving local public notice, and without giving prior local public notice if the period did not exceed four weeks. However, s 3.50 expressly permitted a subsequent order to continue the closure of a thoroughfare for a period not exceeding one year.

5.2.2 The general regulation making power and transitional regulation making power under the 1995 Act and Schedule 9.1

5.2.2.1 Division 6 of the 1995 Act

[21] A 'thoroughfare' was defined in s 1.4 of the Local Government Act 1995 (WA) as first enacted to mean a road or other thoroughfare and includes structures or other things appurtenant to the thoroughfare that are within its limits, and nothing is prevented from being a thoroughfare only because it is not open at each end. This definition remains unamended as at the delivery of these reasons.

Division 6 of the 1995 Act provided for the making of regulations, directions and orders.
Section 9.59 provided for a general regulation making power conferred on the Governor to make regulations prescribing all matters that are required or permitted by the Act, or are necessary or convenient to be prescribed for giving effect to the purposes of the Act.
Section 9.60(1) and (2) provides that the Governor may make regulations that are to operate as if they were local laws and may deal with any matter specified in sch 9.1. Pursuant to s 9.60(3), regulations made under this section, other than those that only repeal or amend other regulations under this section, are to contain a statement to the effect that they apply as if they were local laws.
Schedule 9.1 specified the matters for which the Governor may make regulations. Clause 3(1) of sch 9.1 provided that regulations may be made about the obstruction of public thoroughfares by things that have been placed on the thoroughfare, or have fallen from land or fallen from anything on land.

5.2.2.2 Division 8 amendments to the 1960 Act and transitional provisions including the making of transitional regulations and Schedule 9.3

Division 8 of the 1995 Act as enacted provided for amendments to the 1960 Act and transitional provisions. Division 8 also contained a regulation making power, in s 9.71.
Section 9.71 provided:
9.71.Transitional provisions
(1)Schedule 9.3 has effect for the purpose of the transition to this Act from the provisions it amends.
(2)If there is no sufficient provision in this Act for dealing with a matter that needs to be dealt with for the purpose mentioned in subsection (1), regulations may prescribe all matters that are required or necessary or convenient to be prescribed for dealing with the matter.
(3)Regulations under subsection (2) may provide that specific provisions of this Act or the Local Government (Miscellaneous Provisions) Act 1960 as in force on or after the commencement of this Act, or of subsidiary legislation made under either this Act or that Act —
(a)do not apply; or
(b)apply with or without specified modifications,
to or in relation to any matter or thing.
(4)Regulations under subsection (2) may have effect before the day on which they are published in the Gazette.
(5)To the extent that a regulation under subsection (2) has effect before the day of its publication in the Gazette, it does not —
(a)affect in a manner prejudicial to any person (other than the State or a local government), the rights of that person existing before the day of its publication; or
(b)impose liabilities on any person (other than the State or a local government) in respect of anything done or omitted to be done before the day of its publication.
Schedule 9.3 contained transitional provisions which dealt with continuation of constitutional arrangements, such as membership and appointments of local government authorities, former councils, wards and representation, electoral matters, administration matters including employment of local government employees, financial management and audit, former bylaws, uniform general bylaws, and the continuation of former regulations.
Of relevance to the arguments raised on behalf of the respondent, cl 2 of sch 9.3 provided that '[t]his Schedule does not limit the operation of the Interpretation Act 1984.' Importantly, however, the transitional provisions which apply to closure of thoroughfares are not contained in sch 9.3.

5.3 Regulation 6 of the 1996 Regulations

Regulation 6, as made by the Governor and published in the Government Gazette on 24 June 1996, made a specific provision for the transition of the effect of the decisions made under s 331B of the 1960 Act to place obstructions in a street. Regulation 6 provided:
6.Transitional provisions about road closures
(1)If, when the Act comes into operation, a thoroughfare –
(a)has been obstructed by a local government under the former section 331B; or
(b)has been temporarily closed under the former section 334 on the application of a local government,
the local government is to be regarded as having ordered under section 3.50 that the thoroughfare be closed, either wholly or partially, as required to continue the obstruction or closure in effect as if the Act had not come into operation.
(2)Subregulation (1) does not apply so as to continue the obstruction or closure beyond the time when it would have continued if the Act had not come into operation, nor so as to continue it beyond 30 June 2002.
(3)The local government may, by local public notice, order that the closure be revoked or that it be varied in such a way as to be less restrictive.
(4)In this regulation –
'former section' means a section of the Local Government Act 1960 as in force before the day on which the Local Government Act 1995 comes into operation.
The effect of reg 6, if it applied to the 1985 decision to place obstructions in the Jull Street Mall pursuant to s 331B of the 1960 Act, was that on the coming into operation of the 1995 Act on 1 July 1996, the decision was deemed to be an order to close the Jull Street Mall to the passage of vehicles pursuant to s 3.50 of the 1995 Act. However, the effect of the 1985 decision as an order under s 3.50 was an order that would cease to have effect beyond 30 June 2002.

5.4 The parties' submissions about the effect of the enactment of the regulation making powers and the transitional provisions of the 1995 Act and reg 6

The applicant contends that the power to make reg 6 was conferred on the Governor either by cl 3 of sch 9.1 (being the power to make regulations about the obstruction of public thoroughfares by things that have been placed on the thoroughfare) or, alternatively, by s 9.1(2) and (3) (which provides for a general regulation making power to make transitional regulations that provide that specific provisions of the 1960 Act or of subsidiary legislation made under the 1960 Act apply with specified modifications).[22]
[22] ts 9.
The respondent does not rely upon the effect of the order made on 28 June 2021 pursuant to s 3.50. It contends that because the process required to permanently obstruct the Jull Street Mall to vehicular traffic pursuant to s 331B of the 1960 Act was validly done and complete by 1985, the transitional provision in reg 6 did not operate so as to cause a review of all decisions validly done and complete as at the time of the commencement of the 1995 Act.
Consequently, the respondent argues that the s 331B decision of the council of the respondent to place obstructions in the Jull Street Mall continues to apply indefinitely so that at all material times vehicular traffic has been lawfully obstructed from movement in Jull Street Mall.
In particular, the respondent argues that s 37(1)(b) and (c) of the Interpretation Act applies to save those acts lawfully done under the 1960 Act to permanently obstruct vehicular traffic from the Jull Street Mall.

The respondent also argues that there is nothing in the 1995 Act which expressly empowers the transitional provisions contained within reg 6 to operate retrospectively. Accordingly, the respondent argues that reg 6 only applies to those matters that have been commenced, but not completed, or that are temporary obstructions.
Thus, it is said to follow that reg 6 cannot operate to disturb a thing lawfully done some 12 years prior, and should not be read in conflict with the legislative provisions. Further, the attempt to construe reg 6 so as to operate retrospectively to cause a review of every road closure pursuant to s 331B of the 1960 Act would have an effect so unreasonable that it cannot be regarded as falling within the contemplation of the legislature. This is said to be particularly so when Parliament was clear that a decision made under s 331B would be able to operate permanently.
In summary, the respondent contends that if the construction or placing of obstructions to a street or way for the purpose of prohibiting the movement of vehicular traffic was complete prior to the enactment of the 1995 Act and the coming into operation of reg 6, the decision made pursuant to s 331B would be saved by s 37 of the Interpretation Act as there would be no action in transition.

5.5 Disposition – Regulation 6 of the 1996 Regulations applied to the decision made pursuant to s 331B to prohibit the movement of vehicular traffic in the Jull Street Mall

5.5.1 The source of the power to make reg 6 of the 1996 Regulations

I do not agree that reg 6 could be found to have been made pursuant to the power conferred on the Governor to make regulations pursuant to s 9.60 of the 1995 Act. This is because regulations made under s 9.60 are regulations that are to operate as local laws. Pursuant to 9.60(3), regulations made under 9.60, other than those that only repeal or amend other regulations made under 9.60, are to contain a statement to the effect that they apply as if they were local laws. There is no statement made in reg 6, or generally in the 1996 Regulations, that reg 6 is made as a local law.
I do agree, however, that the power to make reg 6 was conferred by s 9.71(2) and (3) of the 1995 Act.
I do not agree that a decision to indefinitely place any obstruction in a street or way for the purpose of prohibiting the movement of vehicular traffic made pursuant to s 331B of the 1960 Act, even if the process of giving effect to the decision by the consent of the Minister was complete prior to the coming into operation of the 1995 Act, continued to have effect only by the force and effect of the operation of s 331B when read with s 37(1)(b) and (c) after the coming into operation of the 1995 Act.
For the reasons I give below in 5.5.2 and 5.5.3, but for the enactment of s 9.71(2) and (3) of the 1995 Act and reg 6, the 1985 decision made pursuant to s 331B would have ceased to have any effect on the coming into operation of the 1995 Act.

5.5.2 The obstruction of Jull Street, made pursuant to s 331B of the 1960 Act, was subsidiary legislation made under the 1960 Act

The decision by a council to obstruct a street or way under s 331B was a decision which had legislative force and effect. Consequently, it was a decision that can properly be defined as 'subsidiary legislation' made under the 1960 Act, for the purposes of s 9.71(3).
A resolution made under a written law that has administrative effect does not constitute 'subsidiary legislation'. To meet the requirements of the definition of subsidiary legislation in the Interpretation Act, a resolution made under a written law must have legislative effect.
Section 5 of the Interpretation Act defines 'subsidiary legislation' to mean any proclamation, regulation, rule, local law, by‑law, order, notice, rule of court, local or region planning scheme, resolution, or other instrument, made under any written law and having legislative effect.
A decision made pursuant to s 331B of the 1960 Act to obstruct a street or way for the purpose of prohibiting the movement of vehicular traffic can only be properly characterised as a decision that was made under a written law having legislative effect.
In Sea Shepherd Australia Ltd v The State of Western Australia, Edelman J pointed out the question to be asked is whether the decision or instrument in question share sufficient general characteristics or effects of legislation that can be described as legislative in character or effect, or administrative in character effect, and then went on to observe:[23]
[23] Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66; (2014) 313 ALR 184 [61] ‑ [67] (citations omitted).
The leading decision is that of Latham CJ (with whom McTiernan J agreed) in Commonwealth v Grunseit. One issue in that case concerned whether a direction given by the Minister for the Army on 17 August 1942 was an order, rule, or by-law 'of a legislative and not an executive character' within the meaning of s 5(4) the National Security Act 1939 ‑ 1940. That subsection applied the requirement in s 48 of the Acts Interpretation Act 1901 ‑ 1937 for laying certain instruments before Parliament.
In the Chief Justice's judgment, he explained that the legislation in that case was based upon an assumption that it is possible to draw a distinction between instruments which are of a legislative character and those which are of an executive character. He said that the distinction was not always easy to draw. But his Honour then described what is now a significant starting point for the divide between a legislative act and an administrative act:
The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases. Attention has been given in the United States of America to this distinction for the purpose of applying the doctrine which is there accepted of the separation of legislative, executive, and judicial power. My brother Williams referred to the case of J W Hampton Jr & Co v United States, where it was said: 'The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law.'
The reference by the Chief Justice to legislation determining the content of a law as a rule of conduct or a declaration as to power, right or duty has been referred to on many occasions. It has been described as a 'hallmark of the exercise of legislative power' and a 'rudimentary distinction'.
In the Full Court of the Supreme Court of Western Australia, in Norton v The Queen, Roberts‑Smith J (with whom Wallwork J and Pidgeon AUJ agreed) also referred to one of the decisions under the Administrative Decisions (Judicial Review) Act which had followed Commonwealth v Grunseit. Roberts-Smith J applied the same approach to s 5 of the Interpretation Act treating 'legislative effect' in the same manner as 'legislative character' (and in contrast with 'administrative character'), an approach open on the wide variety of meanings of 'effect':
... the distinction is essentially between the formulation of rules of law having general application and the application of general rules to particular cases.
Nevertheless, although this formulation may be the 'essential' distinction, and although this approach of Latham CJ may be a 'hallmark' or important consideration, it cannot be decisive.
One reason why the approach of Latham CJ cannot be decisive is because, as explained above, s 43(7) of the Interpretation Act specifically contemplates that a power to make subsidiary legislation may be exercised in relation to any specified case or class of case. This appears to contemplate the possibility of subsidiary legislation which applies general rules to specific cases.
Justice Edelman then went on to find that the approach to the determination of whether an instrument has legislative effect begins by focusing upon the instrument and asking whether the instrument creates a rule of conduct or a declaration as to power, right or duty (in which case it has legislative effect), or whether it applies the law in particular cases.
His Honour also importantly observed that this approach cannot be finally determinative of the legislative effect of an instrument (or a decision) and went on to summarise a number of factors, the presence or absence of which may bear upon whether an instrument has legislative or administrative effect.[24] These particular factors were:[25]
[24] Sea Shepherd Australia Ltd v The State of Western Australia[2014] WASC 66; (2014) 313 ALR 184 [77] ‑ [78]; applied in Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 (Pritchard J); Tallott v City of Stirling [2017] WASCA 126 [180] ‑ [186].
[25] Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66; (2014) 313 ALR 184 [80] ‑ [81].
(i)the greater the control that Parliament has over the power reposed in the executive the more legislative the instrument will be in effect;
(ii)a requirement of wide public consultation before an instrument takes effect is an indicator that it has legislative effect;
(iii)the wider the range of considerations that the decision‑maker is entitled to take into account, the more likely the instrument will be characterised as legislative in effect;
(iv)a broad nature and impact of the decision will be another indicator of legislative effect;
(v)the absence of executive control of the decision indicates that it has a legislative effect; and
(vi)the omission of a power of merits review by an administrative tribunal is another indicator of legislative effect.
These are not exhaustive factors. At the end of the day, the question of whether an instrument has legislative effect is to be answered by considering whether the instrument bears sufficient resemblance to legislation, having regard to those qualities usually present in legislation. The more legislative qualities that are present in the instrument the more it is likely to have a legislative effect.
When these factors are considered, it is clear that a decision made pursuant to s 331B of the 1960 Act, to construct or place any obstruction in a street or way for the purpose of prohibiting the movement of vehicular traffic, bears sufficient resemblance to legislation, having regard to those qualities usually present in legislation.
First, under the 1960 Act the respondent was a municipality established by the Governor, and was constituted as a corporate body having perpetual succession, a common seal, and the powers and obligations conferred and imposed upon a municipality by law.[26] The power to construct or place obstructions in a street or way following a resolution of council required the consent of the Minister and the written consent of the Minister responsible for the administration of the Road Traffic Act 1974 (WA). Consequently, the first factor of a great deal of control by the executive over the power to construct or place obstructions in a street or way was present.
[26] Local Government Act 1960 (WA), s 9.
Second, prior to finally forming the opinion that a street or way should be obstructed by the construction or placing of obstructions, a council was required, pursuant to s 331B (2) to (4), to publish a notice of the proposal specifying the situation of the obstruction and the manner in which it was proposed to prohibit the movement of vehicular traffic in a street or way, and to consider all objections made by any person. Then, after forming the opinion that the street or way should be obstructed in the manner set out in the notice, the respondent was required to send a copy of its report, together with the objections, to the Minister for the Minister's approval. Consequently, the second factor of wide public consultation prior to a decision of the council taking effect was present.
Third, the basis upon which any person could object to the proposal to obstruct a street or way, pursuant to s 331B, was unlimited. Given that a council would have been required to consider all objections made if any were received, the third factor of a wide range of considerations a council would have to consider prior to providing a report to the Minister for his consent could be said to be present.
Fourth, although it appears there was no right of a merits review, so that this factor cannot be present, the absence of this factor alone is not determinative.
The nature and impact of a decision to obstruct a street or way, so as to create a mall, or for another use other than as a thoroughfare, would be that the exclusion of movement of vehicular traffic from that street or way was rendered lawful. Plainly, the effect of a decision to construct or place any obstruction in a street or way for the purpose of prohibiting the movement of vehicular traffic would constitute a declaration as to power or right to exclude vehicular traffic. For these reasons, a decision made pursuant to s 331B of the 1960 Act would be a decision that had legislative and not merely administrative effect.
For these reasons also, the 1985 decision to obstruct Jull Street so as to create the Jull Street Mall, made pursuant to s 331B of the 1960 Act, was a resolution made under a written law having legislative effect within the meaning of subsidiary legislation in s 5 of the Interpretation Act.

5.5.3 Effect of repeal of empowering provision on subsidiary legislation

The general rule that is that when delegated legislation has been made under a section of an Act and that section of the Act, or the Act itself, is repealed, the delegated legislation is also repealed, unless the repealing Act includes a saving clause intended to keep the delegated legislation in force.[27] There are exceptions to this general rule which apply where other provisions of the enabling Act are not repealed, such provisions can be found to evince an intention to leave the existing subsidiary legislation in force.[28]
[27] Bird v John Sharp & Sons Pty Ltd [1942] HCA 27; (1942) 66 CLR 233, 239 (Latham CJ), 250 (Williams J).
[28] Bird v John Sharp & Sons Pty Ltd [1942] HCA 27; (1942) 66 CLR 233, 250 (Williams J).
The effect of subsidiary legislation made under a repealed Act depends upon the form of the transitional saving clause or clauses.
In Bird v John Sharp & Sons Pty Ltd, the transitional provision under the new regulations provided that 'all orders made under the repealed Regulations which were, in force at the commencement of these Regulations shall, except so far as they are inconsistent with these Regulations, be deemed to have been made … under these Regulations.[29] Latham CJ relevantly construed this provision as follows:[30]
The provision makes sense only if it is interpreted to mean that orders already made (i.e., before the coming into effect of Statutory Rules 1940 No. 176) under the repealed Regulations shall be deemed to have been made under the regulation contained in Statutory Rules 1940 No. 176 which authorizes the making of orders — i.e., under reg. 23(1). If reg. 2A(2) had provided that, notwithstanding the repeal of prior statutory rules, orders made under those rules should remain in force, it could not have been argued that the repeal of reg. 23(1) terminated their existence. But reg. 2A(2) does not provide that orders made under repealed rules shall remain in force. The provision that except so far as inconsistent with Statutory Rules 1940 No. 176 orders shall 'be deemed to have been made' under that statutory rule has a quite different effect. It means that the orders are in future to depend for their authority upon the order-making power contained in Statutory Rules 1940 No. 176 and not upon any other power. If they are orders of a character which is authorized by that power they will be as effective as if they had actually been made under that power; but, if they are inconsistent with any of the regulations, they will not be deemed to have been made under Statutory Rules 1940 No. 176.
[29] Bird v John Sharp & Sons Pty Ltd [1942] HCA 27; (1942) 66 CLR 233, 238 (Latham CJ).
[30] Bird v John Sharp & Sons Pty Ltd [1942] HCA 27; (1942) 66 CLR 233, 239.
Section 37(1)(b) and (c) of the Interpretation Act do not assist the respondent in its contention that the 1985 decision continued to apply after the enactment of the 1995 Act and continues to apply at this present time.
Section 37(1)(b) and (c) provides that where a written law repeals an enactment, the repeal does not, unless the contrary intention appears:
(a)affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment (s 37(1)(b)); or
(b)affect any right, interest, title, power or privilege created, required, accrued, established or exercisable or any status or capacity existing prior to the repeal (s 37(1)(c)).
Section 37(1)(b) and (c) of the Interpretation Act only saves the operative effect of a decision, made pursuant to s 331B of the 1960 Act, to obstruct a street or way for the purpose of prohibiting the movement of vehicular traffic until s 331B was repealed on the coming into operation of the 1995 Act which brought into operation cl 8(2)(b) of sch 9.2.
This legislative consequence is made absolutely clear by s 35 of the Interpretation Act which provides that where a written law repeals an enactment and substitutes provisions for the enactment repealed, the repealed enactment remains in operation until the substituted provisions come into operation.[31]
[31] See Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 [9] (McHugh J).
When these principles are applied, by the operation of s 35 of the Interpretation Act, on the repeal of s 331B and the enactment of the substituting provisions of s 9.71(2) and (3) and s 3.50 of the 1995 Act, when read together with reg 6, the 1985 decision made pursuant to s 331B ceased to have effect because its enabling provision (s 331B) was repealed.
Insofar as the 1985 decision continued to have any legal effect, it did so only because of the transitional provisions provided for in s 9.71(2) and (3) and reg 6, and took effect only by the operation of the transitional provisions.
Insofar as the 1985 decision had any operative effect on its own, without regard to these provisions of the 1995 Act and reg 6, it only did so by the operation of s 37(1)(b) and (c) and s 37(2) of the Interpretation Act which saved the legality of the exclusion of vehicular traffic from the Jull Street Mall from the date the decision was made in 1985 until the 1995 Act came into operation on 1 July 1996.
Section 37(2) of the Interpretation Act provides that the inclusion in the repealing provisions of any enactment of any express saving with respect to the repeals affected thereby shall not to be taken to prejudice the operation of this section with respect to the effect of those repeals.
If, as the respondent contends, the transitional provision in reg 6 did not apply because reg 6 only applied to obstructions that had been commenced, but not completed, or to temporary obstructions, then the 1985 decision to obstruct Jull Street made pursuant to s 331B of the 1960 Act would have ceased to have effect on 1 July 1996 when the 1995 Act came into operation.
However, it is clear that the ordinary meaning of reg 6 is that it applied to all obstructions of a thoroughfare by a local government under s 331B of the 1960 Act.
Consequently, by the operation of the transitional provisions of s 9.71(2) and (3) of the 1995 Act, reg 6, and s 3.50 of the 1995 Act, the 1985 decision was deemed to be an order under s 3.50, which order only had effect until 30 June 2002.

6.0 The effect of the order made on 28 June 2021 to close of the portion of Jull Street that comprises the Jull Street Mall

It is apparent that the respondent received legal advice that the decision to create the Jull Street Mall in 1985 may have ceased to be effective on 1 July 2002.
As a consequence, the respondent's Technical Services Committee resolved on 17 March 2021 to give local public notice, pursuant to s 3.50 of the 1995 Act, of the intention to order that a portion of Jull Street that comprises the Jull Street Mall be closed to the passage of vehicles to address the technicality of the original order for which its permanent closure had expired, so that the status quo could be retained until such time as a community engagement process had been conducted and a final determination had been considered by council. The local public notice contained a clear statement to this effect.
The local public notice also gave four weeks' notice for submissions to be made to the respondent, which period expired on 11 May 2021. In addition, as set out in 2.0 of these reasons, the local public notice stated that the respondent would be undertaking a separate community engagement process to seek feedback on whether to open the mall to traffic or keep it as a pedestrian mall.

6.1 The legislative history of s 3.50 of the 1995 Act

As set out above in 5.2, at the time the 1995 Act was first enacted, s 3.50(3) limited the period an order could close a thoroughfare to the passage of vehicles to a period of not exceeding one year, with the power to make another order continuing the closure of a thoroughfare.
In 1998, by the enactment of s 11 of the Local Government Amendment Act 1998 (WA), s 3.50(3) was amended to extend the period an order could close a thoroughfare to the passage of vehicles to a period of not exceeding four years. Later in 1998, by the enactment of the Local Government Amendment Act (No 2) 1988 (WA) amendments were made to s 3.50(5) and s 3.50(7) which are not relevant to the disposition of this application.
In 2004, more substantial amendments were made to s 3.50 which expressly enabled a local government to close a thoroughfare for a period of less than four weeks without local public notice, and exceeding four weeks by giving local public notice prior to making the order, by amending s 3.50(1), inserting a new s 3.50(1a), and deleting s 3.50(3) and s 3.50(7).
Importantly, by the 2004 amendment, the maximum duration of any order of a finite term of four years in s 3.50(3) was deleted by the deletion of the whole of s 3.50(3).
Following these amendments, at the time the order was made by the respondent in 2021, s 3.50 provided:
3.50. Closing certain thoroughfares to vehicles
(1)A local government may close any thoroughfare that it manages to the passage of vehicles, wholly or partially, for a period not exceeding 4 weeks.
(1a)A local government may, by local public notice, order that a thoroughfare that it manages is wholly or partially closed to the passage of vehicles for a period exceeding 4 weeks.
(2)The order may limit the closure to vehicles of any class, to particular times, or to such other case or class of case as may be specified in the order and may contain exceptions.
[(3)deleted]
(4)Before it makes an order wholly or partially closing a thoroughfare to the passage of vehicles for a period exceeding 4 weeks or continuing the closure of a thoroughfare, the local government is to —
(a)give local public notice of the proposed order giving details of the proposal, including the location of the thoroughfare and where, when, and why it would be closed, and inviting submissions from any person who wishes to make a submission; and
(b)give written notice to each person who —
(i)is prescribed for the purposes of this section; or
(ii)owns land that is prescribed for the purposes of this section;
and
(c)allow a reasonable time for submissions to be made and consider any submissions made.
(5)The local government is to send to the Commissioner of Main Roads appointed under the Main Roads Act 1930 a copy of the contents of the notice required by subsection (4)(a).
(6)An order under this section has effect according to its terms, but may be revoked by the local government, or by the Minister, by order of which local public notice is given.
[(7)deleted]
(8)If, under subsection (1), a thoroughfare is closed without giving local public notice, the local government is to give local public notice of the closure as soon as practicable after the thoroughfare is closed.
(9)The requirement in subsection (8) ceases to apply if the thoroughfare is reopened.

6.2 The parties' submissions as to the validity of the order made on 28 June 2021 and the proper construction of s 3.50

6.2.1 The applicant's submissions

In summary, the applicant's argument is that the order made by the respondent by resolution made by the council on 28 June 2021 was ultra vires because:
(a)an order under s 3.50(1a) is a power to make an order that a thoroughfare 'is closed … for a period exceeding 4 weeks', which must be construed as an order having the effect of closing the thoroughfare for an ascertainable 'course or extent of time' commenced after the making of the order;
(b)the order made on 28 June 2021 was not supported by s 3.50(1a) because it did not have the effect of closing Jull Street (it was already closed) and it was not for an ascertainable 'period' with a definite starting point post‑dating the order. Rather, the order was one which sought to regularise an existing, unlawful closure and continue it into the indefinite future which was a decision of a kind not authorised by the statute;
(c)s 3.50 does not authorise the respondent to retain an unlawful status quo; and
(d)s 3.50 does not permit the respondent to make a declaration intended to retrospectively implement a process which had not been implemented when it was required to be done by operation of reg 6, on or before 1 July 2002.
The applicant points out that s 3.21 of the 1995 Act requires a local government, so far as reasonably practicable, to ensure that thoroughfares are not obstructed. This is said to be part of a legislative scheme of primacy of free movement of citizens, enabling their mobility and convenient access to each other and to services.
The purpose of a duty to generally keep thoroughfares open and unobstructed is said to be reflected in s 3.50 of the 1995 Act itself in at least three respects:
(1)if the thoroughfare is going to be only partially closed for more than four weeks, a process of public consultation is required (s 3.50(1)(a));
(2)the Minister has supervisory jurisdiction over any orders for the closure of a thoroughfare (s 3.50(6)); and
(3)if the thoroughfare is closed for a period of time less than four weeks, (subsequent) local public notice of it is still required unless the thoroughfare 'is re-opened' (s 3.50(8) and (9)).
Therefore, the s 3.50 process involves a degree of public scrutiny and accountability.
The applicant claims that by purportedly making the order to close the Jull Street Mall to the passage of vehicles pursuant to s 3.50, the respondent retrospectively attempted to alter the legal effect of its omission after some 20 years. Thus, the applicant contends that first the issue is whether s 3.50 empowers the respondent to retrospectively alter the legal effect of the closure of the Jull Street Mall.
For the reasons that follow below in 6.4, it is clear that the order made by resolution on 28 June 2021 was not retrospective, nor could it operate retrospectively.
Leaving aside the issue of retrospectivity, the second issue raised by the applicant is that it contends that the text of s 3.50 of the 1995 Act does not enable the artificial attempt made by the respondent to 'rectify' the omission to make the Jull Street Mall a lawful 'closure' in several respects.
In making this submission, the applicant submits that it is useful to compare the power conferred by s 59 of the Land Administration Act 1997 (WA), which provides for the creation of a mall reserve, which pursuant to s 55 of that Act, property and land comprising a road is revested in the Crown and such roads are under the care, control and management of the relevant local government.
The third issue raised by the applicant is the meaning of the words in s 3.50(1a) to close a thoroughfare for a period exceeding four weeks.
The applicant submits:
(a)the power to close a thoroughfare pursuant to s 3.50 can only be exercised in respect of 'a period', whereas the creation of a mall reserve by the exercise of power pursuant to s 59 of the Land Administration Act is not for 'a period';
(b)the meaning of the word 'period' is defined variously as 'an interval of time' or a 'specified division or portion of time', not, as purportedly done here, until the respondent says otherwise, which may never occur;
(c)inherent in the verb 'close' is that it is not possible to close anything unless it is first open. This should be contrasted with s 59 of the Land Administration Act which empowers a local government to initiate the creation of a mall reserve in respect of which it is immaterial whether traffic is currently accessing the road, or not, for a mall reserve to be created; and
(d)the verb 'order' connotes an instruction to do something. It does not connote a mere declaration to try and fix an omission which took legal effect on 1 July 2002, and had legal consequences.
The applicant also contends that the local public notice issued by the respondent prior to making the order reflected its misapprehension of the nature of the function it had performed, and was attempting to perform, in that:
(a)the respondent had not closed a portion of Jull Street since 1992;
(b)the phrase 'that closure has expired' is nonsensical. The physical obstruction remained in place at the time of the public notice, such that no reasonable person reading the local public notice would understand what was meant when it said that the 'closure has expired', when vehicles could not access the Jull Street Mall. It was a continuing state of affairs;
(c)having stated that the closure has 'expired' (which might reasonably mean to a reader that it was now 'open'), the respondent then explained in the public notice that its purpose is 'the continued closure of that portion of Jull Street', as if it had not 'expired', but still existed in order to 'continue';
(d)the express purpose stated in the local public notice was not to 'close' a street which is open to vehicular traffic, but rather to retain the current status quo until such time as council decides otherwise, a notion which is:
(i)inconsistent with a 'period' as that term is used in s 3.50, because the council may never decide otherwise;
(ii)inconsistent with the notion of closing something which is currently open; and
(iii)effectively an adoption of a 'status quo' which was unlawful by reason of reg 6, because the respondent did not act as it was required to do before 30 June 2002.
Therefore, as that power had not been exercised by the respondent in any respect prior to 30 June 2002, the applicant contends the Jull Street Mall was unlawfully obstructed to vehicular traffic by the respondent at all material times from 1 July 2002. If that is so, the applicant argues it is itself self‑evidently unlawful to purport to retain an unlawful current status quo.

6.2.2 The respondent's submissions

The respondent in its written and oral submissions only engaged in part with the applicant's submissions in respect of the validity of the order made by resolution on 28 June 2021.
This appears to be because the respondent takes the view that the resolution to place the obstructions in Jull Street to create the Jull Street Mall in 1985 continues to have operative effect. The gist of the respondent's submissions are that the passing of a further resolution did not invalidate the 1985 resolution, it was a mere restatement of the position. For the reasons I have already given in 5.5 of these reasons, this view of the operative effect of the 1985 resolution is not correct.
The respondent does, however, put the point that when s 3.50 was amended in 2004, the time limit for an order closing a thoroughfare was entirely removed with the express and unequivocal intention of allowing local governments to permanently close a thoroughfare. The respondent points out that this intention was stated by the Minister for Local Government and Regional Development in a speech to Parliament on 3 December 2003 when the Minister moved that the Local Government Amendment Bill 2003 (WA) (the Bill) be read for a second time. In the second reading speech the Minister relevantly stated:[32]
Part 3 of the Act describes the functions of local governments. Significant amendments to this part include empowering councils to close thoroughfares for indefinite periods without having to readvertise closures every 4 years.
[32] Hansard, Wednesday, 3 December 2003, 13988b ‑ 13990a, 2.
The respondent also points out that the explanatory memorandum for the Bill stated that one of the significant changes to the 1996 Act was that '[l]ocal governments will be empowered to close thoroughfares for indefinite periods without re‑advertising the closure for every four years', and the clause notes for cl 26 of the Bill, which amended s 3.50, stated '[c]lause 26 amends section 3.50 to remove the current four year limit on temporary road closures and allow such closures to be indefinite. The section is redrafted substantially.'
The respondent also points out that all the requirements of s 3.50 of the 1995 Act and reg 3A of the Local Government (Administration) Regulations 1996, which sets out the publication notice requirements, were satisfied and submits that s 3.50 does not require that a thoroughfare that is to be the subject of a closure order, being open before a legal decision, is capable of being made for the purposes of s 3.50.

6.3 Relevant principles of construction of statutes

Pursuant to s 19(1) of the Interpretation Act, consideration may be given to extrinsic material which is capable of assisting in the ascertainment of the meaning of a provision which includes explanatory memorandum relating to the Bill containing the provision (s 19(2)(e)) or the second reading speech by the Minister for Local Government (s 19(2)(f)). This material can be considered to either:
(a)confirm the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context, the written law, and the purpose or object underlying the written law; or
(b)to determine the meaning of the provision when the provision is ambiguous or obscure.
However, extrinsic materials are not to be used as the starting point in the construction of a legislative provision. The general principles that apply to the consideration of the context of the history of statutory provisions, and the use of extrinsic materials, were summarised by the Court of Appeal in Tsang v Francis as follows:[33]
The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT); Travelex Ltd v Federal Commissioner of Taxation; SZTAL v Minister for Immigration and Border Protection.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd.
However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself. See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd; Alphapharm Pty Ltd v H Lundbeck A/S.
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd.
…
Section 18 of the Interpretation Act provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects. See Mills v Meeking.
[33] Tsang v Francis [2021] WASCA 131 [141] ‑ [144] and [146] (footnotes omitted); see also The Commissioner of Police v Ferguson [2019] WASCA 14; (2019) 54 WAR 177 [70] ‑ [73] (Buss J); Parker v City of Rockingham [2021] WASCA 120 [48] ‑ [53]; Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208 [59] ‑ [63] (Kenneth Martin J).
Consequently, regard can only be had to the statements made in the explanatory memorandum and/or the second reading speech about the effect of the proposed 2004 amendment to s 3.50 which amended s 3.50(1), enacted s 3.50(1a), and deleted s 3.50(3) to either confirm the ordinary meaning conveyed by the text of s 3.50, taking into account its context in the 1995 Act and the purpose or object underlying the 1995 Act, or to determine the meaning of s 3.50 if it is found that ambiguity arises.

6.4 Disposition – The order to close the Jull Street Mall on 28 June 2021 was authorised by s 3.50

First, it is clear that the order made by resolution to close the Jull Street Mall to the passage of vehicles on 28 June 2021 was not by its terms a retrospective order. It did not purport to operate retrospectively. The resolution by the council was to order the closure of the portion of Jull Street that comprised the Jull Street Mall, which by the terms of that order could only operate on and from 28 June 2021.
Consequently, the applicant's contentions in respect of retrospectivity of the effect of the order must necessarily fall away. The consequence of not making an order until 28 June 2021, and the effect of the operation of reg 6, is that, in the absence of any other power to support the closure, the closure of the Jull Street Mall between 1 July 2002 and 27 June 2021 was unlawful.
The substantive issue to be determined in this application is whether the making of the resolution to order the closure of the Jull Street Mall to the passage of vehicles on 28 June 2021 was authorised by s 3.50, and whether the closure of the Jull Street Mall on and from 28 June 2021 was lawful.
The focus of this substantive issue is the proper construction of s 3.50 which concerns whether a 'period', for the purpose of s 3.50, must exhibit a precise and identifiable end date, and whether a thoroughfare can be closed pursuant to s 3.50 when in fact it was, for all purposes at the time the order was made, closed to the passage of vehicles.

Dealing with the first issue, although the applicant only refers to one meaning of the word 'period', the ordinary meaning of the word when used in the context of time can bear two meanings.
The first is the meaning relied upon by the applicant and that is any specified division or portion of time, or definite portion of time.[34] Put another way, a length of time marked by the occurrence of a phenomenon, a definite portion or division of time, or a fixed number of years, etc.[35]
[34] See the Macquarie Dictionary online, macquariedictionary.com.au.
[35] See the Oxford English Dictionary, online oed.com.
The second is an indefinite portion of time, characterised by certain features or conditions,[36] or an indefinite portion or interval of time.[37]
[36] See the Macquarie Dictionary online, macquariedictionary.com.au.
[37] See the Oxford English Dictionary, online oed.com.
Consequently, the ordinary dictionary meaning of the word 'period' is wide enough to capture both a fixed period with a definite end date, or a period that is indefinite.
The question is whether there is a discernible and important constraint imposed by s 3.50(1a), when read with s 3.50(4), having regard to the context of the words 'for a period exceeding 4 weeks', and the purpose and object of the legislation which constraint must properly be construed as requiring the fixing of a definite end date. Put another way, do these words carry a requirement for the fixing of precise certainty of the order by requiring an end point to its operative effect?
The short answer to this question is no.
First, a 'thoroughfare' is defined in s 1.4 of the 1995 Act to mean a road or other thoroughfare and includes structures or other things appurtenant to the thoroughfare that are within its limits. A road is not prevented from being a thoroughfare only because it is not open at each end.
Section 3.50 provides for closure of a thoroughfare but not for the conversion of a thoroughfare into another land use such as the creation of a mall reserve which, pursuant to the provisions of the Land Administration Act, the land upon which a mall reserve is created would cease to be a thoroughfare. When regard is had to this context, a third meaning of the word 'period', or a subset of the meaning of the word 'period', in the context of indefinite time emerges, and that is a length of time that is uncertain.
This is because by ordering the closure of a thoroughfare, the thoroughfare must be capable at some time of being opened to the passage of vehicles. This does not mean that a point in time that this is to occur must be identified. This also does not mean that obstructions such as paving, seating and substantial planting could not be placed on the land that is a closed thoroughfare. If a thoroughfare is re‑opened, this simply means that these obstructions would have to be removed. This is different to the creation of a mall reserve which contemplates that an area of land that was a thoroughfare is for all future use not a thoroughfare, because it becomes a Crown reserve.
Second, although the applicant's argument centres on the words in s 3.50(1a) 'a period exceeding 4 weeks', the word 'period' relevantly also appears in s 3.50(1) and s 3.50(4), and the amendments made to s 3.50 in 2004 must be construed in the context that, if an order is made to, wholly or partially, close a thoroughfare to the passage of vehicles:
(a)for a period less than 4 weeks, then before making the order for closure, the local government is required to give local public notice prior to making the order, or is required to do so as soon as practicable after the thoroughfare is closed;
(b)but if the closure is to be for a period exceeding 4 weeks, prior to ordering the closure of the thoroughfare, local public notice must be given and a reasonable time for submissions to be made allowed and the local government must consider those submissions; and
(c)s 3.50(4) expressly contemplates that a subsequent order can be made to continue the closure of a thoroughfare.
There is no express statement in s 3.50 which provides that a closure order is to be limited to a defined length of time, other than where a closure order is made for a period not exceeding 4 weeks.
Regard is to be had to the context of, and the relevant history of, the enactment of s 3.50(1a) in 2004 by the deletion of the whole of s 3.50(3), which deleted the legislative command '[t]he order cannot be made to have effect beyond 4 years after the first day which it has effect' and did not substitute the four year limitation period with any requirement that could be properly construed as a legislative command that conditions the exercise of a power to make a closure order to specify a defined length of time.
Plainly, the meaning of the words 'for a period exceeding 4 weeks' in s 3.50(1a) and s 3.50(4) is that a definite time limit for the operative effect of an order is not a condition for the exercise of the power to make an order. An order can simply be made that a thoroughfare is to be closed to the passage of vehicles, which order would operate on its terms indefinitely for an uncertain period of time in the sense that the area of land which is subject to the closure still remains, for the purposes of the 1995 Act, a thoroughfare.
If it is necessary (which I find it is not because this ordinary meaning emerges from the words of, and as conveyed by, the text of s 3.50(1a) and s 3.50(4)), regard can be had to the extrinsic materials contained in the relevant passages of the explanatory memorandum and the second reading speech, set out in 6.2.2 of these reasons, to confirm this ordinary meaning. In addition, if there is any ambiguity in the word 'period' (which I do not find), regard could be had to these extrinsic materials to determine the ordinary meaning of these subsections of s 3.50.
In respect of the issue of whether an order to close a thoroughfare can be made when in fact the thoroughfare is already closed and has been for some time unlawfully closed, it is relevant to consider the effect of the capacity to make an order continuing closure of a thoroughfare as contemplated by s 3.50(4).
It is not nonsense, as the applicant submits, to describe the 1985 resolution to close the Jull Street Mall to vehicular traffic as having expired. It is clear that pursuant to reg 6, the 1985 resolution (which became an order pursuant to s 3.50 on the coming into operation of the 1995 Act) expired on 1 July 2002.
Insofar as s 3.50(4) provides that an order can be made continuing wholly or partially the closure of a thoroughfare to the passage of vehicles, this provision contemplates that a prior order has been made that has expired in the sense that an order had been made to close the thoroughfare for a fixed period, and that period had come to an end or was about to come to an end. This provision also contemplates that when an order is made to continue the closure of a thoroughfare, the thoroughfare may already be closed to the passage of vehicles at the time the order is made.
When this construction is accepted, the applicant's argument that an order cannot be made by a local government pursuant to s 3.50 if the thoroughfare, that is to be the subject of the order, had already been closed, must necessarily fail.

7.0 Conclusion

For these reasons, I do not find it necessary to consider the parties submissions in respect of materiality of error and the court's discretion to issue a writ of either certiorari or mandamus.
I also do not find that it is necessary to consider the respondent's written submissions as to whether the closure of Jull Street to the passage of vehicles could be found to be lawful by the erection of signage by the respondent indicating that a portion of Jull Street was closed and designated as a pedestrian mall, pursuant to r 103 and r 1805 of the Road Traffic Code 1974 (WA), and r 3 and r 292 the Road Traffic Code 2000 (WA).
These reasons for decision only deal with the issue of whether the closure of the Jull Street Mall to the passage of vehicles was lawful pursuant to s 3.50 of the 1995 Act on and between 1 July 2002 and 27 June 2021.
For these reasons, the application for judicial review should be dismissed.
I will hear the parties further as to the precise orders that should be made, including orders as to costs.

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
2 NOVEMBER 2022