Benedict Industries Pty Ltd v Sutherland Shire Council

THE STATUTORY AND REGULATORY FRAMEWORK

1. Section 24(2) of the EPA Act provides that the Minister as defined (or a delegate) may make a local environmental plan. One of the matters for which a local environmental plan may make provision is the protection or preservation of trees or vegetation (s 26(1)(e)).
2. The Minister for Urban Affairs and Planning made the SSLEP 2000 on 13 December 2000. It applied to most of the Sutherland Shire but not to two significant parts, being the Menai town centre and the Kurnell peninsula.
3. Clause 13 of the SSLEP 2000 relevantly provided as follows in relation to the Council's power to make a TPO: "13 How are trees and bushland vegetation preserved? (1) The objective of this clause is the preservation of valuable trees and bushland vegetation in Sutherland Shire. (2) Where it appears to the Council that it is expedient for the purpose of preserving or securing trees and bushland vegetation in order to ensure the integrity of the natural environment for both residents of and visitors to Sutherland Shire, it may make a tree and bushland vegetation preservation order. (3) A tree and bushland vegetation preservation order may prohibit the ringbarking, cutting down, topping, lopping, pruning, removing, injuring or wilful destruction of any bushland vegetation, tree or trees specified in the order except with development consent or the permission of the Council. (4) A tree and bushland vegetation preservation order made in accordance with this clause may apply to any tree or trees, or to any specified class, type or description of trees or to bushland vegetation described in the order. (5) A tree and bushland vegetation preservation order may exempt any tree or any specified class, type or description of trees or bushland vegetation upon land described in that order. (6) A tree and bushland vegetation preservation order, and an amendment or repeal of any such order, has effect only when it has been published in the Gazette and in a local newspaper. (7) A person must not contravene, or cause or permit the contravention of, a tree and bushland vegetation preservation order that is in force. …"
4. Section 371 of the Local Government Act 1993 (NSW) states the following in relation to the manner in which Council decisions may be made: "A decision supported by a majority of the votes at a meeting of the council at which a quorum is present is a decision of the council."
5. There was no suggestion in the present case that there was any relevant delegation of the Council's power to make a TPO under the SSLEP 2000.

THE FACTUAL CIRCUMSTANCES

1. On 5 February 2001 the Council considered a report of its Environment and Health Committee dated 29 January 2001.
2. The report noted that there were at that time four major planning instruments that applied to the Sutherland Shire. The three of present relevance were:

• The SSLEP 2000 applying to most of the Sutherland Shire;
• The Sutherland Local Environmental Plan - Menai Town Centre SLEPMTC 1992 (the "Menai LEP"); and
• The Sydney Regional Environmental Plan SREP No.17 - Kurnell Peninsula (the "Kurnell SREP").

1. Whilst the SSLEP 2000 permitted the Council to make a tree and bushland vegetation preservation order, preservation orders could only be made in respect of trees under the Kurnell SREP and the Menai LEP did not permit the making of a tree or bushland vegetation preservation order at all.
2. The report recommended that the Kurnell SREP and the Menai LEP be amended to permit the Council to make a TPO relating to both trees and bushland in the areas covered by those instruments. It also recommended that the existing TPO be extended to cover bushland vegetation. It noted that the Council had been advised, sometime earlier, that the existing TPO "is invalid in that it cannot be applied consistently across the Shire". Proposed amended instruments were attached.
3. At its meeting on 5 February 2001 the Council resolved that the proposed amendments to the Menai LEP and the Kurnell SREP and an amended draft of a new TPO for the Sutherland Shire "be publicly exhibited concurrently for a period of 28 days".
4. A further report of the Environment and Health Committee dated 14 May 2001, which was submitted for consideration by the Council at its meeting on 21 May 2001, concluded as follows: "Council's current Tree Preservation Order currently does not protect areas of bushland vegetation, nor does it apply consistently across the Shire. The proposed amendments to Menai Town Centre LEP and SREP 17 include a consistent provision that will apply across the Shire and will enable the Order to be enforced. It is essential that the Order, once adopted, is promoted throughout the community to ensure effective implementation. Once the new Order is in place, a publicity and marketing campaign should be undertaken to ensure that the community understands the impacts of the new Order and so that its implementation is effective. The draft instruments and Order have been prepared and exhibited in accordance with State policies. Consultation has been undertaken with the appropriate authorities and internal Council officers' and their comments have been taken into consideration. It is therefore recommended that Council resolve to proceed with the draft instruments and the Order, as amended, and to submit the plan to the Secretary of the Department of Urban Affairs and Planning for the plan to be made by the Minister."
5. At this meeting, the Council passed the following resolutions which conformed with the resolutions recommended in the Environmental and Health Committee report of 14 May 2001: "1. That pursuant to Section 68(4) of the Environmental Planning and Assessment Act 1979, as amended, draft Sutherland Local Environmental Plan - Menai Town Centre (Amendment 1) be submitted to the Secretary of the Department of Urban Affairs and Planning for the Plan to be made by the Minister. 2. That Council officers report on the plan to the Minister under Section 69 of the Act, utilising existing delegations. 3. That the amendment to Sydney Regional Environmental Plan No. 17 Kurnell Peninsula be submitted to the Secretary of the Department of Urban Affairs and Planning for the amendment to be endorsed. 4. That the draft Tree and Bushland Vegetation Preservation Order, as amended, take effect from the date of its advertisement in the Government Gazette and St George and Sutherland Shire Leader. 5. That the initiatives outlined in the report under 'Publicity and marketing of the Tree and Bushland Vegetation Preservation Order' be undertaken upon gazettal of the Order."
6. The TPO was expressed, by its terms, to apply "to all land within the Sutherland Shire Local Government area" (Clause 1).

DID THE COUNCIL PURPORT TO MAKE THE TPO ON 21 MAY 2001?

The judgment at first instance

1. The primary judge quoted the following observations of Wells J in Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504 at 520 in relation to the proper approach to the construction of council resolutions: The arguments advanced by Mr Prior in support of his contention that at least one of the two vital resolutions of June 1972 and October 1973 was invalid were avowedly technical, and for the most part rested upon a strict construction of the resolutions referred to. True it is that resolutions represent the embodiment of decisions of the Council, but I believe it would be a mistake to read them as if they were acts of legislation. I must bear in mind that, for the most part (as their wording often evidences) they are formulated on the spur of the moment, and bear much the same sort of relationship to debates in Council as propositions formulated by counsel in court bear to the dust and conflict of forensic strife; it is essential, therefore, to look at the circumstances in which the resolution or proposition was made if it is to be given its fair and natural meaning. I am of the opinion, too, that a court should not be too ready to attribute to a Council an intention to contradict itself, or to pass inherently inconsistent resolutions; and that if it is possible, by a not unreasonable construction to harmonize two or more apparently conflicting resolutions, then that is the construction that should be adopted. It would, accordingly, be misleading to rely only on the bare words of a resolution disengaged from the events that lead to, and resulted from, its being passed, and to look for unreason rather than for reason."
2. Applying these observations, her Honour concluded that in construing the Council's resolution of 21 May 2001 she was allowed to have regard to the circumstances surrounding its making. Her Honour continued: "55 Construed literally, and in ignorance of its context, in passing resolution 4 the council appeared to do no more than resolve that the draft TPO take effect from the date of its publication in the Gazette and the St George and Sutherland Shire Leader. But when regard is had to the circumstances in which the resolution was passed, it becomes clear, in my view, that the resolution can also be reasonably construed as the council agreeing, and implicitly resolving, to make the TPO."
3. Her Honour's reasons for this conclusion were as follows.
4. First, her Honour considered that the steps that the Council took before and after 21 May 2001 supported the view that it made the TPO on that date: in particular, the Council's consideration of drafts of the TPO on three occasions prior to 21 May 2001 and its agreement on that date that the draft TPO would take effect from the date of its gazettal and its publication in the local newspaper. Her Honour considered that the subsequent gazettal and publicity and marketing campaign that occurred after 21 May 2001 was "rationally explicable only" on the basis that the Council had made the TPO on that date.
5. Secondly, her Honour considered it to be implicit in resolution 4 passed on 21 May 2001 (see [16] above) that the TPO had been made that day.
6. Thirdly, her Honour considered it significant that the Environment and Health Committee's report of 14 May 2001 recommended that the Council resolve to proceed with the draft planning instruments and TPO and that the Council passed resolutions in identical terms to the recommended resolutions.
7. Her Honour noted Benedict's argument that because the TPO could not, as its terms stated, apply to all land within the Sutherland Shire (because the Menai LEP and Kurnell SREP had not yet been amended as intended), "it could not have been the objective intention of the council to make the TPO" at the meeting of 21 May 2001 (Judgment [66]). Her Honour rejected the argument, stating: "77 In Harrington v Lowe the plurality of the High Court articulated the test as follows ([1996] HCA 8; (1996) 190 CLR 311 at 328): 'A valid operation … might be preserved after textual surgery by operation of the 'blue pencil' rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and in particular, there is not left substantially a different law as to the subject matter dealt with from what it would otherwise be."

The submissions on appeal

1. Relying upon the reference in the Environment and Health Committee Report of 29 January 2001 to the advice that the then existing TPO was invalid because it did not extend to the entire Sutherland Shire (see [13] above), Benedict submitted that the Council knew on 21 May 2001 that it could not make a TPO in the terms of the draft before it on that day because the "threshold steps" of having the Kurnell SREP and Menai LEP amended had not been taken. This explains, so Benedict submitted, "why the Council did not resolve to make the TPO on 21 May 2001, but only resolved that the TPO would take effect when published in the Gazette and the nominated local paper. It would have been impossible as at 21 May 2001, to make a Shire-wide TPO".
2. Benedict submitted that the primary judge erred in taking the view (expressed in relation to Benedict's argument that, even if the Council intended to make it, the TPO was invalid, see Judgment [73]) that whilst the TPO would not initially apply to the areas covered by the unamended Menai LEP and Kurnell SREP, its application would automatically expand when those instruments were amended to empower the Council to make the TPO in relation to the areas covered by them. In response, the Council accepted that the TPO could not spring into valid operation in this way and that the TPO, insofar as it related to the Kurnell Peninsula and Menai areas, could only be made after the applicable planning instruments were appropriately amended.
3. Nevertheless, the Council contended that the terms of its 21 May 2001 resolutions manifested an intention to make the TPO on that occasion and that they were inconsistent with an intention merely to inform the community about an intention of the Council to make the TPO in the future.
4. It submitted that the inference that the Council did not understand that the TPO could not automatically apply to the Kurnell Peninsula and Menai areas once the instruments relating to those areas were amended was open, stating: "A legal error on the part of Council to think that a TPO it had made could spring into being in respect of land once an environmental planning instrument had been made which covered that land and authorised its making is, perhaps, understandable."

Consideration

1. The appellant's argument on appeal was twofold. First, it contended that the Council could not have intended to make the TPO on 21 May 2001 because it knew that, if it purported to do so, the TPO could not operate in accordance with its terms and apply to the whole of the Sutherland Shire given the Kurnell Peninsula and Menai planning instruments had not been amended.
2. This argument proceeded upon the assumption that the Council not only knew that it could not make an operative TPO in relation to the Kurnell Peninsula and Menai areas unless the relevant planning instruments were amended but also that, before those amendments were effected, it could not, as the primary judge held was possible, make a TPO that was immediately effective in relation to most of the Sutherland Shire and to the remaining areas of the Kurnell Peninsula and Menai when the amendments to the planning instruments for those areas were made. There is no basis in the evidence for concluding that the Council had knowledge of the latter type. An assumption or belief that the TPO could, so far as those limited areas were concerned, spring into effect when the planning instruments were amended, even if erroneous, was not completely irrational. The primary judge's adoption of this erroneous view demonstrates that this is so. The view is therefore one that the Council may have held.
3. As the Council submitted, a legal error to this effect on the part of the Council, is "perhaps understandable". It is, at the least, as plausible an explanation for the terms of the 21 May 2001 resolutions as a view that the Council did not intend to make the TPO on that day by those resolutions.
4. As a consequence, this contextual aspect of Benedict's argument should be rejected because it does not render a conclusion that the Council intended to make the TPO on that day either more or less likely. Regard must therefore be had to the terms of the resolutions passed on that day, as contemplated by the second aspect of Benedict's argument.
5. Clause 13(6) of the SSLEP 2000 provided that a tree and bushland vegetation preservation order only had effect when it was published in the Gazette and in a local newspaper. Resolution 4 of 21 May 2001 reflected this provision's terms by providing that the draft TPO was to "take effect from the date of its advertisement in the Government Gazette and St George and Sutherland Shire Leader" (see [16] above).
6. Against the background, undoubtedly known to the Council, that under the SSLEP 2000 it, and only it, could make a TPO, the words it used in resolution 4 manifested a clear intent to "make" the TPO in accordance with clause 13(2) of SSLEP 2000. As the Council knew, its decision to make the TPO was a necessary pre-condition to a new TPO taking effect by publication in the Gazette and local newspaper. The Council's expressed intent that the TPO take effect at that time necessarily embodied its intention to "make" the TPO.
7. I do not accept, as Benedict submitted, that the use of the words "as amended" in resolution 4 indicated that the Council intended to make an amended TPO at some future date and not by resolution 4. Neither of the two possible points of reference of those words assist Benedict. If the words are a reference to changes in the draft TPO in the period leading up to the 21 May 2001 meeting, they do not negate an intention on the part of the Council to make the draft TPO as so amended on 21 May 2001. If they refer to replacing an earlier TPO, they are imprecise because, strictly, what occurred was the replacement of the earlier TPO, not its amendment. Regardless, they do not detract from the obvious intent to make the TPO.
8. For these reasons, I consider that, contrary to Benedict's submissions, the Council did purport to make the TPO on 21 May 2001.

WHETHER THE TPO, IF PURPORTED TO BE MADE, WAS VALID?

The judgment at first instance

1. Benedict submitted to the primary judge that even if the Council had purported to make the TPO on 21 May 2001, it was invalid because its geographical ambit (exclusive of the Kurnell Peninsula and Menai areas because of the absence of applicable amendments at that stage to the planning instruments) would be inconsistent with the statement in Clause 1 of the TPO that it applied to all land in the Shire, and to sever part or read down that Clause would involve an impermissible exercise in re-writing the TPO.
2. Her Honour rejected this submission for two reasons.
3. First, as noted above, (see [26] above), her Honour considered that notwithstanding that the Kurnell Peninsula and Menai planning instruments had not been amended, the Council had the power to make a TPO which became operative in those areas when the amendments were made. As noted above, the parties to the appeal agreed that this view was erroneous.
4. Secondly, her Honour held that the full operation of Clause 1 of the TPO was not a pre-condition to its validity. Rather, she said that Clause 1 described the TPO's intended geographical ambit and could be read down so that the TPO operated only to the extent that it fell within the Council's power. Her Honour referred to the common law principle to which the plurality referred in Harrington v Lowe [1996] HCA 8;190 CLR 311 at 328 (see [24] above).
5. Her Honour also referred to s 32 of the Interpretation Act 1987 (NSW) which is in the following terms: "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. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made."
6. Because the Interpretation Act provisions do not apply to an instrument "in so far as the contrary intention appears in [that] Act or in the Act or instrument concerned" (s 5(2)), her Honour cited the following observation of Dixon J in Bank of New South Wales v The Commonwealth [1948] HCA 7; 76 CLR 1 at 371 as to the circumstances in which the application of a provision such as s 32 of the Interpretation Act may be displaced: "To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of part, it must sufficiently appear that the invalid provision form part of an inseparable context".
7. Her Honour concluded that reading down Clause 1 of the TPO so that the TPO only applied to the areas covered by the SSLEP 2000 "would not leave the TPO in a radically different form to that made" and would leave it with "significant work to do, albeit less than that envisaged by the council" (Judgment [82]).

Consideration

1. The primary judge's first reason cannot be sustained, for the reason given above in [25]-[26].
2. Benedict submitted that her Honour's second reason failed "to properly recognise the fundamental role of clause 1 in defining and constituting the TPO as an instrument applying to the whole Shire". It contended that to read down Clause 1 of the TPO in the manner that her Honour suggested should occur "would be to judicially create an instrument that perpetuated the mischief that Council was seeking to avoid", that is, the lack of application of the earlier TPO to the Kurnell Peninsula and Menai (see [40] above).
3. I reject this argument. It is no answer to a claim for severance, whether by reading down or otherwise, that the provision in question would not operate as fully as the maker of it had intended. The nature of severance is that a provision to which the doctrine has been applied will not operate in such a way. Rather, as indicated by the following observations of Dixon J in Andrews v Howell [1941] HCA 20; 65 CLR 255 at 281, the question is whether an intention that the provision operate as fully as intended or not at all can be identified: "It is sufficient for present purposes to say that it throws a burden upon those attacking an entire regulation, part of which is bad, of establishing that if the regulation were confined within the limits of the power the result would be, not a partial application of the law, but a different plan or provision, or of establishing that an intention is to be found in the regulation that unless it receives its full intended operation it shall not operate at all. In the case of these regulations I think that the mere fact that some pears or apples escaped from their operation during the time the fruit was the subject of inter-State dealing could not be regarded as going to the root of the plan set up by the Commonwealth. The burden cannot be discharged unless it appears by reasonable inference that it was the intention of the regulations that they should operate in their entirety over all apples and pears in the course of all transactions and at all times as an indispensable condition of the regulations operating on apples and pears in the course of any transaction at any time" (emphasis added).
4. In the present case, there is no reason to conclude that the Council intended that unless the TPO had its "full intended operation", it should not operate at all.

WHETHER THE TPO WAS ULTRA VIRES AS PURPORTING TO PROHIBIT MORE CONDUCT THAN THE COUNCIL WAS AUTHORISED TO PROHIBIT?

1. To support this ground of appeal, Benedict contrasted the Council's power to make a TPO under the SSLEP 2000 with the terms of the TPO purportedly made by it.
2. Clause 13(3) of the SSLEP 2000 permitted the Council to prohibit certain relevant conduct "except with development consent or the permission of the Council" (see [7] above). On the other hand, Clause 2 of the TPO prohibited relevant conduct "unless written consent [was] obtained in accordance with this Order". Clause 5(b) of the TPO expanded that proviso as follows: A development consent granted pursuant to the Environmental Planning and Assessment Act 1979 may also constitute by express words a Consent by Council to Prohibited Action".
3. Benedict submitted that the SSLEP 2000 did not authorise the Council to limit the development consent exception to one where the consent authorised otherwise prohibited conduct "by express words" or to limit the "permission of the Council" exception in Clause 13(3) to "written consent".
4. The primary judge rejected Benedict's submissions, holding, first, that the approval implicit in a development consent to do acts apparently prohibited by the TPO would subsist notwithstanding the TPO and, secondly, that the Council was, as part of its power to make the TPO, entitled to confine the exception in Clause 13(3) to written consent to the doing of acts otherwise contrary to the TPO.
5. It is unnecessary to determine the correctness of these reasons. It is sufficient to conclude, in accordance with the Council's contention on appeal, that, to the extent, if at all, that there is some limited conflict between the enabling power and the TPO as Benedict contends, the TPO may be read down to achieve validity in accordance with the principles referred to in [40] to [46] above. To do so would not produce a radically different TPO and, again, there is no basis for concluding that the Council would not have intended the relevant provisions to operate at all if they could not be read down to this limited extent.

DID THE REPEAL OF SSLEP 2000 BY SSLEP 2006 IMPLIEDLY REPEAL THE TPO?

1. The Sutherland Shire Local Environmental Plan 2006 (the "SSLEP 2006") repealed the SSLEP 2000 except insofar as the latter applied to certain parcels of "excluded" land, including that at Menai upon which the alleged offences were committed.
2. Benedict argued at first instance that because of the express intention in Clause 1 of the TPO that it apply to the whole of the Shire, the purported preservation by the SSLEP 2006 of the SSLEP 2000's operation in relation to the subject land did not in fact preserve the operation of the TPO in relation to the subject land because if it could not apply to the whole of the Sutherland Shire, it could not apply at all.
3. The primary judge rejected this argument, concluding, in conformity with her reasons referred to in [39] to [43] above, that Clause 1 should be read down to apply only to land to which it can validly apply (Judgment [108]).
4. On appeal, Benedict contended that the TPO "cannot be eviscerated to apply only to small parcels of land without its character being radically altered" and that "the TPO is an order which could sensibly only apply broadly across the Shire". It referred to Dixon J's statement of principle in Andrews v Howell quoted in [46] above as support. That statement is however against Benedict's argument as, to use Dixon J's words, Benedict has not demonstrated that it was Council's intention to be found in the TPO "that unless it receives its full intended operation it shall not operate at all". It is correct, as Benedict submitted, that the Council's stated purpose was to make a new preservation order that would apply to the whole of the Shire but that does not mean that if it could not do that that it did not want its TPO to operate to the widest extent possible.
5. Benedict also submitted that after the repeal of the SSLEP 2000, Clause 1 of the TPO would mislead members of the public because there would be "absolutely no indication on the face of the TPO that it only applied to [the] much reduced pockets of land".
6. This consideration does not have, any force. First, if correct, it would apply whenever any legislation or statutory instrument was read down in order to preserve validity. Section 32 of the Interpretation Act requires that reading down to occur. Secondly, as the Council submitted, to reduce the geographical scope of operation of an instrument like the TPO has no impact on the operation of the TPO on land to which it remains applicable. Thus, if read down, the TPO's operation would not be radically different in relation to the reduced land than its intended operation in relation to that land.
7. For these reasons, I also reject this ground of appeal.

ORDERS

1. As none of the grounds of appeal have been successful, I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
2. ADAMS J: I agree with Macfarlan JA.
3. FAGAN J: I agree with Macfarlan JA.

Amendments 26 October 2015 - Correction of typographical errors in [7] and [37] 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: 26 October 2015