Balnaves Foundation Pty Ltd v Minister for Planning

The Imposition of the Condition

1. The background facts in this matter were not in dispute.
2. Balnaves is a private philanthropic organisation and the proponent of development application 313/2015 ("the DA") lodged with the Council on 20 July 2015. As stated above, the DA sought approval for alterations and additions to an existing residential flat building in Dover Heights.
3. On 15 March 2016 the Council granted development consent to the DA ("the consent").
4. Condition 13 of the consent was in the following terms: 13. AFFORDABLE HOUSING CONTRIBUTION - PAYMENT IN ACCORDANCE WITH STATE ENVIRONMENTAL PLANNING POLICY (AFFORDABLE RENTAL HOUSING) 2009 The Affordable Housing Contribution is as follows: (a) Pursuant to clause 51(2) of State Environmental Planning Policy (Affordable Rental Housing) 2009, the applicant must provide a monetary contribution towards the provision of affordable housing as the proposed development will or is likely to reduce the availability of affordable housing within the area. (b) The contribution of $181,000 payable for the provision of affordable housing under s94G(3)(b) [sic] of the Environmental Planning and Assessment Act 1979 for the purpose of mitigating the loss of low-rental accommodation proposed by the subject DA, shall be paid in one complete payment to Waverley Council prior to the issue of a Construction Certificate.
5. On 13 July 2017 Balnaves lodged an application ("the modification application") to modify the consent pursuant to s 96(1A) of the EPAA. Relevantly, the modification application sought the removal of condition 13 from the consent on the ground that that condition had been invalidly imposed.
6. On 8 November 2017 the Council approved the modification application in part, but refused to remove condition 13 ("the modification decision").
7. On 13 November 2017 the General Manager of Balnaves wrote to the Council's Development Assessment Manager requesting a written explanation as to why the Council had rejected the application to remove condition 13.
8. On 14 November 2017 the Council's Development Assessment Manager replied stating that the Council had formed the opinion that condition 13 had been lawfully imposed and referred to the operation of cl 15A of the Regulation.
9. On 15 November 2017 Balnaves' solicitors wrote to the Council refuting this view. A further letter was sent by Balnaves' solicitors on 17 November 2017, advising that it would commence proceedings in this Court if the Council did not issue a revised consent in the form requested (that is, with condition 13 removed) by 20 November 2017.
10. On 24 November 2017 Balnaves' solicitors sent a further letter to the Council referring to a telephone conversation that had taken place that day with a Council officer, and again reiterating that Balnaves would be commencing proceedings to resolve the matter.
11. On 4 December 2017 Balnaves paid the affordable housing levy of $181,000 imposed under condition 13 of the Consent on a without prejudice basis.
12. On 31 May 2018 the summons was filed in Class 4 of the Court's jurisdiciton. Having been commenced out of time, an extension of time to file the summons was sought by Balnaves and granted, albeit reluctantly, by the Court (Balnaves Foundation Pty Ltd v Minister for Planning [2018] NSWLEC 152).

Legislative Framework

1. As at the grant of the consent, s 94F of the EPAA relevantly provided as follows (emphasis added): 94F Conditions requiring land or contributions for affordable housing (1) This section applies with respect to a development application for consent to carry out development within an area if a State environmental planning policy identifies that there is a need for affordable housing within the area … (2) Subject to subsection (3), the consent authority may grant consent to a development application to which this section applies subject to a condition requiring: … (b) the payment of a monetary contribution to be used for the purpose of providing affordable housing… (3) A condition may be imposed under this section only if: (a) the condition complies with all relevant requirements made by a State environmental planning policy with respect to the imposition of conditions under this section, and (b) the condition is authorised to be imposed by a local environmental plan, and is in accordance with a scheme for dedications or contributions set out in or adopted by such a plan…
2. It was agreed that condition 13 was not authorised to be imposed by a "local environmental plan". The only potentially relevant local environmental plan ("LEP") was the Waverley Local Environmental Plan 2012, and no scheme for the contributions was set out in, or adopted by, that environmental planning instrument. Similarly, it was not in dispute that the imposition of condition 13 was not "in accordance with a scheme for contributions set out in or adopted by" a LEP.
3. Clause 15A of the Regulation stated (emphasis added): 15A Transitional provision relating to affordable housing Until the commencement of Part 5B of the Act (to be inserted by Schedule 3 to the Environmental Planning and Assessment Amendment Act 2008), section 94F(3)(b) of the Act is to be construed as if the reference to a condition authorised to be imposed by a LEP (which before the commencement of Schedule 1 to that Act included a reference to a condition authorised to be imposed by a regional environmental plan) were a reference to a condition authorised to be imposed by a SEPP or a LEP.
4. As at the date the consent was granted, cl 51(1) of the SEPP identified a need for affordable housing on land within the Sydney region (which included land within the Waverley local government area), for the purposes of s 94F(1) of the EPAA.
5. Clause 51(2) of the SEPP set out, for the purposes of s 94F(3)(b) of the Act, the circumstances in which that policy authorised a consent condition providing for an affordable housing contribution to be imposed. It stated as follows: (2) For the purposes of section 94F (3) (b) of the Act, this Policy authorises a condition to be imposed under section 94F of the Act if: (a) the consent authority, when determining a development application referred to in clause 50(1), is satisfied that the proposed development will or is likely to reduce the availability of affordable housing within the area, and (b) the condition is imposed in accordance with the scheme for dedications or contributions set out in subclauses (3) and (4).
6. At the time, s 157 of the EPAA, which was a general regulation-making power, provided that (emphasis added): 157 Regulations (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act …
7. Section 159 of the EPAA was entitled "Savings, transitional and other provisions", and gave effect to Sch 6.
8. Clause 1(1) of Sch 6 of the Act relevantly stated: 1 Savings and transitional regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts: … Environmental Planning and Assessment Amendment Act 2008

The 2008 Amending Act

1. The 2008 Amending Act was enacted on 25 June 2008. A key area of reform effected by that Act was in respect of environmental planning instruments. Prior to the enactment of the 2008 Amending Act, the hierarchy of planning instruments in New South Wales consisted of SEPPs, Regional Environmental Plans ("REPs") and LEPs, as set out in Pt 3 of the EPAA. However, in order to simplify the planning system, REPs were deleted by the 2008 Amending Act, and the procedures for making LEPs and SEPPs were altered. The amendments commenced operation on 1 July 2009.
2. Under transitional provisions inserted into the new Pt 21 of Sch 6 to the EPAA (cls 119-123), which also came into effect on 1 July 2009, existing REPs in force immediately before 1 July 2009 were, as at 1 July 2009, taken to be SEPPs under Div 2 of Pt 3 of the EPAA, as amended by the 2008 Amending Act.
3. Further, to reflect the removal of REPs from the State environmental planning regime, references to a "regional environmental plan" in other provisions of the EPAA were omitted. In particular, s 94F(3)(b) of the EPAA, which prior to the enactment of the 2008 Amending Act had authorised the imposition of affordable housing contribution conditions where such a condition was "authorised to be imposed by a regional environmental plan or local environmental plan" was amended so as to omit the reference to REPs.
4. The reference to the 2008 Amending Act in cl 1(1) of Sch 6 to the EPAA was relevantly inserted by the 2008 Amending Act, which had effect from 1 August 2008.
5. At the same time, a new Pt 21 of Sch 6 setting out various provisions of a savings or transitional nature relating to the introduction of the 2008 Amending Act, came into force.
6. Clause 118 of Sch 6 relevantly provided that: 118 Savings and transitional regulations Regulations made under Part 1 of this Schedule have effect despite anything to the contrary in this Part.
7. Clause 120 of Sch 6 of the EPAA provided that: 120 Continuation in force of existing SEPPs and REPs All existing State environmental planning policies and existing regional environmental plans are, on the relevant commencement day, taken to be environmental planning instruments made by the Governor under Division 2 of Part 3 of this Act, as amended by the amending Act.
8. Another major area of reform under the 2008 Amending Act was the statutory regime dealing with development contributions. In this regard, the amendments to the EPAA occasioned by the 2008 Amending Act had the effect of repealing the existing Div 6 (relating to development contributions generally) and Div 6A (relating to affordable housing contribution conditions, in particular), and the insertion into the EPAA of a new Pt 5B and Sch 1 dealing with development contributions.
9. Division 5 of the proposed new Pt 5B made provision for development contributions for affordable housing. Section 116Y, within Div 5, was to replace ss 94F(1)-(3) of the EPAA.
10. Subsection 116Y(1) provided that a SEPP "may identify that there is a need for affordable housing within an area". Importantly, s 116Y(4) provided that an affordable housing contribution condition could only be imposed if (emphasis added): (a) the condition complies with all relevant requirements made by a State environmental planning policy with respect to the imposition of conditions under this section, and (b) the condition is authorised to be imposed by a local environmental plan or State environmental planning policy, and is in accordance with a scheme for dedications or contributions set out in or adopted by the plan or policy.
11. Ultimately, however, the development contribution provisions of the 2008 Amending Act providing for the repeal of Divs 6 and 6A of the EPAA, and the introduction of the new Pt 5B, did not commence operation. This is because on 1 March 2018, the 2008 Amending Act was repealed without those provisions having entered into force (see Sch 12 of the Environmental Planning and Assessment Amendment Act 2017). Clause 15A was removed from the Regulation and transferred to Pt 1B of Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 as cl 15A.

Delegated Legislation Must Not be Inconsistent with the Empowering Act

1. In Plaintiff M47/2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1, French CJ stated that "delegated legislation cannot be repugnant to the Act which confers power to make it" (at [54]).
2. Section 32(1) of the Interpretation Act 1987 similarly provides that: 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.
3. 'Inconsistency' may take many forms. Delegated legislation will be inconsistent if it attempts to do something contradictory to the terms of the enabling Act. A common manner in which delegated legislation is held to be inconsistent with the Act under which it has been made is where it deals with a matter subsidiary to, but associated with, the principal Act in such a way as to contradict the effect of the Act. The subsequent delegated legislation will be found to be inconsistent with the enabling Act considered as a whole. This will be found by a court when there is a departure from the positive provisions located in the Act, especially if the enabling Act, rather than dealing with the mischief in generally terms, has dealt with the subject matter sought to be regulated specifically and in detail..
4. Invalidity can also exist when the person or body to whom the power has been given extends the scope and general operation of the Act in a way that is otherwise strictly ancillary.
5. Further, it is trite law that, except in cases where the Act itself provides that its operation may be varied by regulation, the scope and operation of the statute cannot be determined by reference to the regulations made under it (Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 244 cited in Chief Commissioner of State Revenue v Hayson Group of Companies Pty Ltd [2006] NSWCA 233; (2006) 68 NSWLR 254 at [37]-[38]).
6. In considering the validity of a regulation made by the executive, the question to be determined is whether the regulation-making power contained in the parent Act authorises the making of the regulation at the time it was made. This involves a consideration of the width of the relevant regulation-making power as a matter of construction (Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394; (2013) 86 NSWLR 142 at [66]. See also the helpful discussion in Pearce and Argument, Delegated Legislation in Australia, 5th ed, 2017, pp 317-326).
7. In the leading case of Morton v Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402, a regulation under the Excise Act 1901 (Cth) imposing a liability for the payment of excise duty on a person who had custody of goods that were stolen or destroyed was held to be invalid because the Excise Act already dealt at length with the responsibility for safeguarding excisable goods and the persons liable to pay excise on goods. The regulation sought to impose a liability in addition to those already imposed in the principal Act (at 412).
8. In the present case, three steps are involved in resolving the issue for determination. First, the Court must determine the meaning and scope of the words used in the Act conferring the relevant regulation-making power. Second, the Court must determine the meaning and effect of the relevant subordinate legislation. Third, the Court must decide whether the subordinate legislation falls within the scope of the statutory power properly construed.
9. The statutory regulation-making powers relied upon by the Minister as having authorised the making of cl 15A of the Regulation are s 157 of the EPAA and cl 1 of Sch 6 of the EPAA, which was given effect by s 159 of the EPAA, as in force when the 2009 Amending Regulation was made.
10. On the assumption that cl 15A of the Regulation was validly made, as at 15 March 2016 when the consent was granted (the relevant date), cl 15A operated to require s 94F(3)(b) of the EPAA to be read as, "a condition may only be imposed under this section if the condition is authorised to be imposed by a SEPP or a LEP" (the underlined text having been inserted by the operation of cl 15A).
11. Accordingly, the principal question raised by this proceeding is whether, as a matter of construction, cl 15A of the Regulation is inconsistent with s 94F(3)(b), is not authorised by any other provision of the EPAA, and is therefore invalid. If so, then neither s 94F(3)(b) of the EPAA nor cl 51(2) of the SEPP lawfully authorised the imposition of condition 13 of the consent.
12. A subsidiary issue that arises in the resolution of the principal question above concerns the extent to which reliance can be placed on cl 1(1) of Sch 6 of the EPAA to support the validity of cl 15A of the Regulation. This is discussed further below.

Clause 15A Was Validly Enacted and Condition 13 Was Validly Imposed

1. Because it was agreed that there was no relevant LEP authorising the imposition of the condition under s 94F(3)(b) of the EPAA at the relevant time, as stated above, the only other environmental planning instrument imposing condition 13 was cl 51(2) of the SEPP.
2. There is no dispute that Pt 5B of the Act purporting to insert cl 15A into the Regulation has not yet commenced.
3. Having said this, it must be observed that because the consent was granted on 15 March 2016, the Court is concerned with the validity of cl 15A of the Regulation in force at that time.
4. Balnaves contends that cl 15A of the Regulation is expressly inconsistent with s 94F(3)(b) of the EPAA, is not authorised by any other provision of that Act, and must therefore be invalid. Balnaves contended that, to the extent that reliance is placed on the provisions contained in Sch 6 of the EPAA, those provisions are not of "a savings or transitional nature consequent on the enactment of" an Act, and therefore, do not support the validity of cl 15A of the Regulation.
5. Balnaves' submissions may be summarized as follows. First, s 94F(3)(b) of the EPAA is expressly limited in its application to the circumstance where an affordable housing contribution is authorised to be imposed under a "scheme" adopted by a "local environmental plan". The EPAA expressly distinguishes between SEPPs and LEPs. That there is no express reference to a SEPP in s 94F(3)(b) of the EPAA was a deliberate omission by the legislature. Clause 15A of the Regulation therefore seeks to do something inconsistent with the terms of the enabling provision in s 94F(3)(b) of the EPAA, especially when that Act is considered as a whole.
6. Second, s 94F(3)(b) deals with the subject matter of affordable housing contributions specifically and in detail. In its express terms, it authorises the imposition of a condition which is supported by the provisions of a LEP only. Clause 15A of the Regulation extends the scope and general operation of s 94F(3)(b) of the EPAA in a way that is inconsistent and otherwise impermissible. The purported inclusion of SEPPs within the ambit of s 94F(3)(b) by cl 15A of the Regulation is not a matter which is strictly ancillary to that section (Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250 and Water Board v Glambedakis (1992) 28 NSWLR 694 at 701-702) because SEPPs and LEPs serve entirely different functions within the operation and context of the EPAA.
7. Third, cl 15A of the Regulation purports to construe s 94F(3)(b) of the EPAA. This is plain from the use of the words "is to be construed as if" in the clause. Clause 15A purported to decide or control the meaning of s 94F(3)(b) of the EPAA.
8. Fourth, the EPAA does not relevantly give any regulation or transitional provision made under it the power to amend the Act. Consequently: 1. it is beyond the scope of a regulation (particularly a savings and transitional regulation such as cl 1(1) of Sch 6) to insert the text of a proposed future amendment of an Act (namely, s 116Y) into the Act prior to the amendment commencing, or to provide for the immediate operation of an amendment that has not yet commenced (s 116Y). A regulation cannot be described as a "savings or transitional" regulation if it implements a change in the law before the commencement or coming into force of a new statutory provision. But this is what cl 15A of the Regulation purported to do, because it gave immediate effect to s 116Y (which will never commence); 2. a savings and transitional provision is still subject to the constraints of s 157 of the EPAA (that is, it cannot be inconsistent with the enabling Act). That cl 15A purports to do what s 116Y sought to do, suggests that cl 15A is inconsistent with the EPAA. That s 116Y was required to be enacted in order to achieve the same result as cl 15A, means that there is no support in the present EPAA for the promulgation of cl 15A; and 3. Part 1 of Sch 6 of the EPAA confirms that regulations can be savings or transitional in nature consequent on the enactment of legislation, but it does not permit such regulations to be inconsistent with the Act. In particular, Pt 1 of Sch 6 cannot amplify or expand the power contained in s 157 of the EPAA.
9. Fifth, cl 15A of the Regulation is not a savings or transitional provision consequent upon the enactment of the 2008 Amendment Act. The abolition of REPs by the 2008 Amending Act did not, for the purposes of s 94F(3)(b), require that references to REPs be taken to be references to SEPPs. Clause 15A could have provided that any REP which implemented an affordable housing scheme, continue in force notwithstanding the abolition of REPs as a type of environmental planning instrument. It did not do so.

Balnaves' Approach in Assessing the Validity of Clause 15A is Incorrect

1. There are several reasons why Balnaves' submissions must, in my opinion, be rejected. First, as noted by the Minister, the issue of whether cl 15A was authorised does not turn on a textual comparison between that clause and s 94F of the EPAA. This is because s 94F is not, contrary to Balnaves' contention, the enabling provision for the regulation.
2. Rather, the relevant enabling provision (as at 26 June 2009, which is the date the 2009 Amending Regulation containing cl 15A was made) was s 157 of the EPAA. Section 159 of the EPAA gave effect to Sch 6 and cl 1(1) of Sch 6 provided that the regulations "may contain provisions of a savings or transitional nature consequent on the enactment of the" 2008 Amending Act. The transitional regulation-making power in cl 1(1) of Sch 6 thereby authorised the amendment to s 94F(3)(b) of the EPAA by regulation so as to facilitate the 'transition' towards the amendments introduced by the 2008 Amending Act. The purpose and effect of cl 15A of the Regulation as made, and as in force when the consent was granted, was to allow for such transitioning to occur.
3. Second, properly construed, cl 1(1) of Sch 6 of the EPAA authorised the amendment of that Act.
4. As outlined above, the development contributions provision of the 2008 Amending Act never became operative by reason of the repeal of that Act on 1 March 2018. But, as at 26 June 2009 (when the 2009 Amending Regulation introducing cl 15A was made), cl 1(1) of Sch 6 to the EPAA did permit the making of delegated legislation inconsistent with, or that amended, the EPAA.
5. The language of cl 1 of Sch 6 of the EPAA necessarily authorised regulations departing from the operation of the statute, including s 94F, as in force at the relevant time. This is because the power to make provisions of a "savings or transitional nature" in cl 1(1) of Sch 6, which was expressed to be unconfined by the transitional provisions otherwise contained in Sch 6 (see cl 118), fell within the category of provisions often referred to as 'Henry VIII clauses' (notwithstanding Gageler J's observation as to the perjorative nature of this label in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1 at [61]). Where provisions of this kind are used, substantive changes may be made to statutory provisions by regulation and the operation of the relevant Act will be altered accordingly. The regulation will not be inconsistent with the Act because the Act itself expressly contemplates that it may be modified by such regulation.
6. An issue of inconsistency arose in Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396. There the applicant claimed that approval granted by the Minister for the carrying out of the Tugun Bypass project was invalid. The salient legislative context was as follows (at [3]-[5]): 3 The Minister granted the approval under Pt 3A of the Environmental Planning and Assessment Act 1979 (the "EPA Act"). The Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (the "2005 Amendment Act") inserted Part 3A in the EPA Act. Schedules 1, 4, 5 and 6 of the 2005 Amendment Act commenced on 1 August 2005. 4 The Tugun Bypass project commenced under Pt 5 of the EPA Act, prior to its amendment by the 2005 Amendment Act. An environmental impact statement and species impact statement were obtained and placed on public exhibition. As the RTA was both the proponent and a determining authority with respect to the activity where an environmental impact statement had been obtained, under Div 4 of Pt 5 of the EPA Act, the Minister was required to approve the carrying out of the activity. Before the RTA had sought the Minister's approval, however, the 2005 Amendment Act repealed Div 4 of Pt 5. 5 The 2005 Amendment Act also amended Sch 6 to the EPA Act (given effect by s 159) to enable regulations to contain provisions of a savings or transitional nature consequent on the enactment of the 2005 Amendment Act. The Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005 (the "2005 Amendment Regulation") contained provisions (cl 8J(1) to (3)) which enabled the Director-General to accept or adopt certain steps taken under Pt 5 as matters done under Pt 3A. The Director-General accepted the steps taken under Pt 5 with respect to the Tugun Bypass project for the purposes of Pt 3A.
7. Clause 8J(3) was part of a scheme in the regulations enabling the Director-General to accept requirements issued under Div 4 of Pt 5 as environmental assessment requirements under Pt 3A, a Div 4 of Pt 5 environmental impact statement as an environmental assessment under Pt 3A, and a period of public exhibition as a period of public availability under the EPAA. The 2005 Amendment Act repealed Div 4 of Pt 5. The applicant claimed that cl 8J(3) of the 2005 Amendment Regulation was invalid because it was inconsistent with the provisions of Pt 3A of the EPAA and was not authorised by Sch 6 of that Act. If invalid, then the functions exercised by the Director-General in reliance on the clause were also invalid (at [185]).
8. The applicant's claim was dismissed by Jagot J who relevantly held that (at [187]-[188]): 187 First, the applicant submitted that cl 8J(3) was not consequent on the enactment of the 2005 Amendment Act as required by cl 1(1) of Pt 1 of Sch 6 to the EPA Act (given effect by s 159). "Consequent on" signifies a causal relationship. Regulations are consequent on the 2005 Amendment Act if made because of it. Such regulations must be "of a savings or transitional nature". Such regulations may be inconsistent with the provisions of Sch 6 relating to the 2005 Amendment Act (Sch 6, cl 87). 188 The key fact here is that the 2005 Amendment Act repealed Div 4 of Pt 5. Although there are differences between the provisions of Pt 5 and Pt 3A (as identified in the applicant's points of claim at para 48b), the scheme of which cl 8J(3) forms part is able to be characterised as of a savings and transitional nature consequent on the enactment of the 2005 Amendment Act. Clause 8J(1) to (3) enabled the pre-approval steps taken prior to the repeal of Pt 5 Div 4 to be "saved". It thereby provided a transition to the balance of the provisions of Pt 3A. Regulations of a savings or transitional nature, by definition, will save some things under the repealed law and provide a transition to other things under the new law. A purpose of such a provision is likely to be (as here) establishing a regime so that things done under the old law need not be done again under the new law. Clause 8J(3), in its application to public exhibition of an environmental impact statement to which Div 4 of Pt 5 would have applied (but for its repeal), falls within the description in cl 1(1) of Sch 6.
9. Similarly, in Empire Waste a question arose as to whether a power to make regulations in respect of any matter relating to work health and safety contained in s 276(1)(a) of the Work Health and Safety Act 2011 ("the WHS Act") enabled a regulation to be passed conferring jurisdiction on the District Court in respect of matters under the repealed Occupational Health and Safety Act 2000 ("the OHS Act"). An application was filed in the District Court to commence proceedings against a company and its director for alleged breaches of the OHS Act. The applicants applied for a permanent stay on the ground that the District Court lacked jurisdiction to hear proceedings for an offence under the OHS Act committed prior to its repeal. The prosecutor argued that the Work Health and Safety Regulations 2011 ("the Regulations") conferred such jurisdiction. The applicants replied that the Regulations were invalid.
10. Section 276(1)(a) of the WHS Act provided that the Governor could make regulations in relation to any matter relating to work, health and safety. Clause 1(1) of Sch 4 provided that the Regulations could contain provisions of a savings or transitional nature consequent upon the enactment of the Act.
11. The Court of Appeal held that the power to make regulations contained in s 276(1)(a) of the WHS Act did not enable a regulation to be passed conferring jurisdiction on the District Court in respect of matters under the OHS Act (at [75]). This was because (at [76]): 76. In Shanahan v Scott supra at 250, the High Court emphasised that power to make regulations providing for all or any purposes necessary or expedient for the administration of the Act or for carrying out its objects, could not extend the scope or operation of the Act, or widen the purposes of the Act to add new and different means of carrying them out, or depart from or vary the plan that the legislature had adopted: see also Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402. In my opinion, the same principle would apply to a regulation making power in respect of any matter relating to work health and safety. That provision would not enable a regulation conferring jurisdiction on a court to hear prosecutions for breach of work health and safety laws, particularly in relation to offences under a repealed statute. Such a regulation would go beyond the field marked out by the Act: Carbines v Powell (1925) 36 CLR 88 at 91-92.
12. However, the transitional regulation-making power in cl 1(1) of Sch 4 to the WHS Act included the conferral, by regulation, of the jurisdiction of the District Court to deal with prosecutions concerning the repealed OHS Act because such regulations were of a transitional nature (at [77]-[78]): 77. However, it seems to me that in the particular circumstances of this case it was intended by the legislature that the transitional regulation making power in cl 1 of Sch 4 to the WHS Act would extend to the making of the regulations in question. The regulations were transitional. Prosecution for offences under the OH&S Act in respect of which there was generally a two year limitation period pursuant to s 107 of that Act meant that the regulations could only operate in respect of proceedings commenced prior to 1 January 2014. The regulations were thus transitional in the sense described by Lord Keith of Kinkel in R v Secretary of State for Social Security; Ex parte Britnell [1991] 2 All ER 726; [1991] 1 WLR 198 at 202: "As Staughton L.J. observed in the Court of Appeal, it is not possible to give a definitive description of what constitutes a transitional provision. In Thornton on Legislative Drafting, 3rd ed. (1987), p. 319, it is said: 'The function of a transitional provision is to make special provision for the application of legislation to the circumstances which exist at the time when that legislation comes into force.' One feature of a transitional provision is that its operation is expected to be temporary, in that it becomes spent when all the past circumstances with which it is designed to deal have been dealt with, while the primary legislation continues to deal indefinitely with the new circumstances which arise after its passage. In the present instance regulation 20(2) must eventually become spent, although it may be envisaged that that could take a considerable period of time." See also Australasian Meat Industry Employees Union v Hamberger [2000] FCA 1197; (2002) 102 FCR 74 at [42]-[43]. 78 Further, the regulations in issue can be described as being of a transitional nature consequent upon the enactment of the WHS Act. This is because the WHS Act repealed the OH&S Act, thereby creating the need for transitional provisions to deal with offences which had been committed under the repealed Act.
13. More recently is the decision of ADCO. The case, upon which both parties placed considerable reliance, concerned the validity of savings and transitional provisions inserted into the Workers Compensation Act 1987 ("WCA"), providing that amendments to that Act confining entitlement to lump sum compensation to workers who had suffered injury resulting in permanent impairment exceeding 10%, applied to claims for compensation made on or after 19 June 2012, but not to claims before that date. The Act was also amended to permit the making of further regulations containing provisions of a savings and transitional nature. A regulation commencing on 1 October 2012 provided that the amendment to lump sum compensation entitlements applied to claims for compensation made before 19 June 2012, but not to claims that specifically sought lump sum compensation for permanent impairment. Sections 5(2) and 30(1) of the Interpretation Act stated that the amendment or repeal of an Act or statutory rule did not affect any right, privilege, obligation or liability acquired or incurred under the Act or statutory rule.
14. Mr Goudappel was injured at work on 17 April 2010. He made a claim for compensation on 19 April 2010 that did not specifically seek lump sum compensation for permanent impairment. Later he was found to have a permanent impairment assessed at 6%. ADCO's workers compensation insurer declined liability for lump sum compensation. At issue was whether the amendments applying to claims for compensation made on or after 19 June 2012 applied to a claim for compensation of any type in respect of the same injury before that date.
15. The regulation making power under the WCA was in the following terms (at [14], footnotes omitted): 14. Prior to the amendment of the WCA, s 280, which was not affected by the amendments, conferred a general regulation-making power on the Governor in familiar terms. That section continued as the primary source of the regulation-making power under the WCA. It was given a particular content by Pt 20 of Sched 6 to the WCA, as it stood before the Amendment Act. That Part, entitled "Savings and transitional regulations", provided in cl 1(1) that: "The regulations may contain provisions of a saving or transitional nature consequent on the enactment of the following Acts: this Act and the cognate Acts ..." There followed a list of statutes. The term "cognate Acts" was defined in Pt 1 of Sched 6 by reference to a number of listed Acts.
16. The power was expanded by cl 5 contained in the latest amendments to the Act. It authorised the making of savings or transitional regulations which were inconsistent with the earlier savings or transitional provisions. The relevant statutory scheme was as follows (at [15]-[17], footnotes omitted): 15. Clauses 1(2)-1(4) of Pt 20 are material for present purposes. They provided: "(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect as from the date of assent to the Act concerned or a later day. (3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication in the Gazette, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of any thing done or omitted to be done before the date of its publication in the Gazette. (4) A provision referred to in subclause (1) shall, if the regulations so provide, have effect notwithstanding any other clause of this Schedule." 16. Part 20 of Sched 6 to the WCA was amended by the Amendment Act. The amendment extended the application of cl 1(1), with respect to regulations of a "saving or transitional nature", to "any other Act that amends this Act", and so picked up the Amendment Act itself. The power to make regulations containing savings or transitional provisions consequent on the Amendment Act therefore derived from s 280 of the WCA, read with cl 1(1) of Pt 20. That power was effectively expanded by cl 5 of the new Pt 19H of Sched 6 to the WCA. It authorised the making of savings or transitional regulations which were inconsistent with the provisions of Pt 19H and which amended the WCA. 17. Clause 5 provided: "(1) Regulations under Part 20 of this Schedule that contain provisions of a saving or transitional nature consequent on the enactment of the 2012 amending Act may, if the regulations so provide, take effect as from a date that is earlier than the date of assent to the 2012 amending Act. (2) Clause 1(3) of Part 20 does not limit the operation of this clause. (3) A provision referred to in subclause (1) has effect, if the regulations so provide, despite any other provision of this Part. (4) The power in Part 20 to make regulations that contain provisions of a saving or transitional nature consequent on the enactment of the 2012 amending Act extends to authorise the making of regulations whereby the provisions of the Workers Compensation Acts are deemed to be amended in the manner specified in the regulations." Clause 5(4) underpinned the challenged regulation, which, if valid, was said to displace the protection which cl 15 otherwise accorded to Mr Goudappel's accrued entitlement to permanent impairment compensation under the WCA, as it stood prior to the amendments.
17. The plurality of the High Court held that although Mr Goudappel's pre-amendment entitlement was an accrued right within the meaning of the Interpretation Act, a contrary intention had been evinced by the savings and transitional provisions of the Act as amended by the regulations (per French CJ, Crennan, Kiefel and Keane JJ at [32]). An argument that the impugned amendment was not a regulation of a savings or transitional character within the meaning of cl 5(1) was rejected. The plurality concluding that "the new regulation affected the scope of a statutory savings or transitional provision and shared its character" (at [33]).
18. Gageler J held that the Act provided for the making of regulations of a saving or transitional nature which overrode the legal meaning of its provisions. The impugned regulation had a transitional nature and operated to remove the entitlement of Mr Goudappel to a lump sum (at [55] and [59]-[62], footnotes omitted, emphasis added): 55. Within the structure of the empowering provisions, it is the opening words of cl 1(1) of Pt 20 of Sched 6 which permit the making under s 280(1) of the Act of a regulation which contains a provision "of a saving or transitional nature" consequent on the enactment of the 2012 amending Act. A provision of such a nature will, by definition, either save a thing so as to remain governed by the Act as it existed before the enactment of the 2012 amending Act or transition the thing so as to be governed by the Act as amended by the 2012 amending Act. The various subclauses of cl 5 of Pt 19H are directed to spelling out the extent of the permissible legal operation of a provision of that nature. … 59. The effect of cl 5(3) of Pt 19H, as foreshadowed in cl 3 of Pt 19H, is that any provision of a savings or transitional nature consequent on the enactment of the 2012 amending Act contained in a regulation made under s 280(1) as permitted by cl 1(1) of Pt 20 can have legal effect to override the operation of any other provision of Pt 19H, including cl 15. The broader and overlapping effect of cl 5(4) of Pt 19H is that any such provision can deem any provision of the Act to be amended in any manner "specified" in the provision: that is to say, in any manner clearly set out in the provision. 60. Clauses 5(3) and 5(4) of Pt 19H so operate to ensure that a provision contained in a regulation which cl 1(1) of Pt 20 of Sched 6 permits to be made under s 280(1) of the Act, being a provision of a savings or transitional nature consequent on the enactment of the 2012 amending Act, is within the permitted subject-matter of regulation-making power (and is not "inconsistent" with the Act within the meaning of s 280(1)) notwithstanding that the substantive operation of the provision in accordance with its terms is to override any other provision in Pt 19H or to alter the legal meaning of any provision of the Act. 61. The underlying legislative purpose is evidently to provide a flexible means of making adjustments to the savings and transitional provisions otherwise contained in Pt 19H which does not require those adjustments to be embodied in further amendments to the Act. The flexible means provided is the conferral on the executive of permission to make regulations containing such other provisions of a savings or transitional nature as may be considered by the executive to be appropriate, subject to disallowance of any provision of a regulation so made by resolution of either House of Parliament under s 41 of the Interpretation Act. That parliamentary oversight is facilitated by the requirement of s 40 of the Interpretation Act for written notice of the regulations to be tabled in both Houses of Parliament, and is enhanced by the requirement under s 4 of the Legislation Review Act 1987 (NSW) for the existence of a joint committee of members of Parliament (known as the Legislation Review Committee), the functions of which include, under s 9 of that Act, considering all regulations while they are subject to disallowance and considering whether the special attention of Parliament should be drawn to any such regulation on any ground. That parliamentary oversight, together with the scope for judicial review of the exercise of the regulation-making power, diminishes the utility of the pejorative labelling of the empowering provisions as "Henry VIII clauses". The empowering provisions reflect not a return to the executive autocracy of a Tudor monarch, but the striking of a legislated balance between flexibility and accountability in the working out of the detail of replacing one modern complex statutory scheme with another. 62. In pursuing the purpose of providing a flexible means of making adjustments to the savings and transitional provisions otherwise contained in Pt 19H, each of cll 5(3) and 5(4) of Pt 19H also manifests a sufficiently clear legislative intention that a provision which meets the description to which it refers - a provision of a savings or transitional nature consequent on the enactment of the 2012 amending Act - is to operate in accordance with its terms. This is so even if the provision is inconsistent with the maintenance of a right or liability which had come into existence under the Act before the enactment of the 2012 amending Act and even if that right or liability would have continued to exist by force of another provision of Pt 19H had the regulation containing the provision not been made. The legislative purpose of permitting a regulation of a transitional nature consequent on the enactment of the 2012 amending Act, in addition to a regulation of a saving nature consequent on the enactment of the 2012 amending Act, would be stifled were a provision of a transitional nature to be limited to a provision having no effect on such an existing right or liability. The legislative purpose would also be substantially impeded were the empowering provisions to be construed asymmetrically, to permit alteration of an existing right or liability only if beneficial to a worker.
19. Thus in ADCO, the High Court made it clear that transitional regulation-making powers of the kind appearing in cl 1(1) of Sch 6 to the EPAA could be relied upon to support regulations that amend the operation of the principal Act.
20. Applying the reasoning in these cases to the statutory framework the subject of these proceedings, the underlying legislative purpose of cls 1(1) and 118 of Sch 6 to the EPAA is, in my view, to provide a flexible means of making adjustments to the savings and transitional provisions otherwise contained in Pt 21 of Sch 6 to the EPAA.
21. Therefore, provided that cl 15A of the Regulation met the description of a provision "of a savings or transitional nature consequent on the enactment of the" 2008 Amending Act, it will have been authorised by cls 1(1) and 118 of Sch 6 to the EPAA, and is not a regulation "inconsistent" with the EPAA for the purposes of the general regulation-making power in s 157.
22. Properly construed, cl 15A supplements (in the sense of augments), rather than conflicts with or contradicts the scope of s 94F(3)(b) of the EPAA. In other words, it is not impermissibly "inconsistent" with the Act. There was nothing irreconcilable between the two provisions. That the effect of cl 15A is to alter the legal meaning of s 94F(3)(b) of the EPAA is entirely permissible, notwithstanding the other savings and transitional provisions already contained within Pt 21 of Sch 6 to the EPAA.
23. Balnaves sought to distinguish ADCO on the basis that fundamental to the Court's finding that the impugned regulation was within power, was the operation and effect of cl 5(4) of the WCA. Clause 5(4) expressly authorised regulations to be made which had the effect of amending provisions of the enabling legislation.
24. By contrast, Balnaves argued, the EPAA did not contain a cognate power to that contained in cl 5(4), thereby permitting any regulation (including a savings or transitional regulation) to be inconsistent with, or to amend, the Act. Given the express language of s 157, clear words would be required to overcome its mandate that regulations must not be inconsistent with the EPAA. The separate remarks of Gageler J, on which the Minister relied, had to be understood in their proper legislative context. Therefore, if the power to modify or alter a provision of the EPAA was to be given, it had to be given expressly (as it was in ADCO) and no such power was conferred either in s 157 or cl 1(1) of Sch 6 of the EPAA.
25. But the absence of a clause such as cl 5(4) in ADCO is not, in my opinion, fatal. In that case, the focus was on cl 5(4) of the WCA because the effect of the amendment was the loss of accrued entitlements to Mr Goudappell.
26. In the present case, the regulation-making power was conferred by reason of the operation of ss 157 and 159 and cl 1(1) of Sch 6 of the EPAA. If the EPAA could not be modified or altered in reliance upon the savings or transitional regulation-making power contained in cl 1(1) of Sch 6, and required a power expressed in accordance with the terms of cl 5(4) of the WCA, then the legislative intention of conferring a flexible means of regulation-making (namely, to create exceptions to the operation of the substantive provisions of the EPAA in accordance with their terms for certain transitional periods), would be unworkably circumscribed, if not entirely defeated.
27. Third, cl 15A is a provision "of a savings or transitional nature consequent on the enactment of the" 2008 Amending Act.
28. As stated above, the 2009 Amending Regulation was made on 26 June 2009 and commenced operation on 1 July 2009. It introduced into the Regulation cl 15A, which was effective as of 1 July 2009 and which was operative at all times as at the date of the grant of the consent.
29. When the text of cl 15A is viewed in its proper context, particularly in light of the reforms introduced by the 2008 Amending Act, the "transitional nature consequent on the enactment of the 2008 Amending Act" of that clause becomes apparent: 1. prior to the enactment of the 2008 Amending Act, affordable housing contribution conditions could be authorised by the provisions of LEPs or REPs. Specific reference is made to this in cl 15A itself; 2. the 2008 Amending Act removed REPs from the statutory scheme but deemed all former REPs to be SEPPs under the new scheme for planning instruments; 3. the development contributions scheme enacted by the 2008 Amending Act contained in the proposed new Pt 5B of the EPAA, which had not yet commenced at the time the 2009 Amending Regulation was made, authorised the imposition of affordable housing contribution conditions where this was permitted under the terms of a SEPP. Clause 15A expressly made reference to that uncommenced Part; and 4. the operation of cl 15A was expected to be temporary, insofar as it would become otiose upon the commencement of Pt 5B of the EPAA and the imposition of affordable housing contribution conditions would, pursuant to s 116Y of Pt 5B of the EPAA, be permitted if authorised by a LEP or a SEPP.
30. Balnaves, relying on a Macquarie Dictionary definition of "transition" as the "passage from one position, state, stage, etc, to another", submitted that cl 15A did not facilitate a 'transition' towards the amendments introduced by the 2008 Amending Act. Rather, it had the purpose and effect of immediately commencing s 116Y(4) of the 2008 Amending Act, notwithstanding that as at the date of the grant of the consent imposing condition 13, that Act was not in fact in force. Furthermore, that Act and that provision will not commence, the 2008 Amending Act having since been repealed. Thus there was no transitional effect which cl 15A could achieve.
31. Balnaves also argued that cl 15A was not a savings and transitional provision "consequent on" the enactment of the 2008 Amending Act. The term "consequent on" signifies a causal relationship, and cl 15A could only be "consequent on" the 2008 Amending Act if made because of it.
32. Division 2 of Pt 3 of the EPAA relates to the promulgation of SEPPs. Accordingly, the effect of cl 120 of Sch 6 of the EPAA was that REPs were deemed to be SEPPs. But, according to Balnaves, the abolition of REPs by the 2008 Amending Act did not authorise any regulation (such as cl 15A) to amend s 94F(3)(b) of the EPAA so as to extend its reach to all SEPPs. The purpose of the 2008 Amending Act was, relevantly, to ensure that any existing REP was saved pending the phasing out of that form of environmental planning instrument from the NSW planning system, by deeming them to be SEPPs. Section 94F(3)(b) of the EPAA never applied to SEPPs, and the purported effect of cl 15A was to authorise any and all SEPPs to impose an affordable housing contribution. This was a wholesale change and amendment to s 94F(3)(b) of the EPAA. A savings and transitional provision could lawfully have had the effect of 'saving' existing REPs which authorised the imposition of affordable housing contributions (such as the approach adopted by cl 120 of Sch 6 of the EPAA), but there was no warrant for cl 15A to immediately expand s 94F(3)(b) to apply to an entirely new and separate category of environmental planning instruments (that is, to any and all SEPPs).
33. Balnaves' contentions may be answered in the following way: 1. first, there was no mischief in cl 15A seeking to do what the not yet commenced s 116Y also sought to do. This did not result in impermissible inconsistency. This is the very purpose of the work to be performed by a transitional regulation-making power. In ADCO, for example, the High Court validated a regulatory provision that was directly inconsistent with an operational provision; 2. second, that Pt 5B, and therefore s 116Y, never came into effect does not matter. At the time that cl 15A was promulgated, the objective intention of Parliament was that Pt 5B would commence. Accordingly, the purpose and effect of cl 15A was to transition from a statutory regime whereby affordable housing contributions could be authorised under LEPs or REPs, to one where former REPs were deemed to be SEPPs and, pursuant to Pt 5B, affordable housing contributions were authorised under LEPs or SEPPs. It is erroneous to ascribe and apply, by use of hindsight, the current statutory regime - that is, the repeal of the 2008 Amending Act - to cl 15A in order to characterise its transitional (or otherwise) nature at the time of its enactment; 3. third, to claim that cl 15A caused s 116Y to come into operation is not correct because s 116Y must be construed having regard to the whole of Pt 5B, which was not picked up by cl 15A; and 4. fourth, that there may have been other ways by which the transition between the two statutory schemes might have been achieved does not alter the fact that the transitioning effected by cl 15A was "consequent on" the enactment of the 2008 Amending Act.
34. Therefore in circumstances where cl 15A was expressed to be temporary in its effect; concerned the 'transition' from one regime to another introduced by the 2008 Amending Act; and affected the scope of the other savings/transitional provisions in the EPAA, it was "consequent upon", in the sense of 'arose from', the enactment of the 2008 Amending Act insofar as it was responding to changes effected by that Act.

Conclusion and Orders

1. For the reasons discussed above, cl 15A of the Regulation was a valid exercise of the transitional regulation-making power contained in s 159 and cl 1(1) of Sch 6 to the EPAA, and the general regulation-making power in s 157 of the EPAA. Clause 15A could therefore be relied upon to support the imposition of the affordable housing contribution condition (condition 13) in the consent.
2. The summons must therefore be dismissed. The applicant must pay the respondents' costs. The exhibits are to be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2018