Cavanagh v Wollondilly Shire Council

Catchwords

[2017] NSWCA 191 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27[2009] HCA 41 Attorney-General for NSW v XX (2018) 98 NSWLR 1012[2018] NSWCCA 198 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503[2012] HCA 55 Commonwealth Custodial Services Ltd v Valuer General [2007] NSWCA 365(2007) 156 LGERA 186 DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173(2017) 228 LGERA 342 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[1998] HCA 28 Valuer-General v Fivex Pty Ltd [2015] NSWCA 53(2015) 206 LGERA 450 Whittaker v Northern Beaches Council (No 3) [2018] NSWLEC 143

Judgment (9 paragraphs)

[1]

Judgment

Before the Court is a separate question arising in Class 1 appeal proceedings brought by Samuel Cavanagh ('applicant') against Wollondilly Shire Council's ('Council') deemed refusal of DA784/2018 ('DA'), under which the applicant seeks consent for the subdivision of Lot 6 in DP 1128635 known as 11 Westminster Place, Razorback ('site') into five Torrens title lots in two stages, and associated development.

Council's position

Council's position is that cl 4.1B(3) of the WLEP 2011, properly construed, imposes a prohibition for subdivision (exceeding a certain ratio) in respect of land which possesses two essential characteristics, namely: 1. zoned E4 Environmental Living; and 2. identified as "Original holdings" on the Original Holdings Map.
On Council's construction, the application of cl 4.1B of the WLEP 2011 when considered against the DA has the effect that the proposed development is prohibited. That is because the single land unit in issue identified as an "Original holding" comprises approximately 40.15 hectares of land zoned E4 Environmental Living.
That is, Council submits that the application of the subdivision ratio of 1 lot per 4 hectares to the 40.15 hectares produces a total of 10 lots, and that part of the Original Holdings zoned E4 was subdivided on 21 July 2008, creating 11 lots. As such, Council contends that the permissible subdivision has been exhausted.
Council submits that the "land to which this clause applies" as referred to in cl 4.1B(3) is land which satisfies both of the characteristics at [17]. As such, Council submits that the total number of lots to which the 1 lot per 4 hectare ratio must not be exceeded is to be determined by reference to the land which satisfies the two essential characteristics identified above, not merely by reference to the area of the land unit identified as "Original holdings".
Council advocates for a construction that promotes the purpose or object of cl 4.1B of the WLEP 2011 which it says is expressly identified in subcl (1), being "…to ensure that certain land within Zone E4 Environmental Living is not subdivided…" (emphasis added). Council submits that the object of the clause is to apply to a sub-set of land zoned E4 Environmental Living which is identified in subcl (2) by reference to the Original Holdings Map.
Council contends that its construction of cl 4.1B is reinforced when regard is had to the recent context in which the Original Holdings Map was amended on 27 May 2016 by the WLEP Amendment No 21. Clause 3 of that amending instrument identified that it applied "…to certain land at Razorback and Menangle within Zone E4 Environmental Living under Wollondilly Local Environmental Plan 2011" (emphasis added). Council submits that this indicates that cl 4.1B is intended to operate by reference to land zoned E4 Environmental Living.
Council submits that the heading to cl 4.1B, although not formally part of the WLEP 2011, constitutes extrinsic material to which reference may be had to confirm the meaning of the provision.
Further, Council submits that cl 4.1B of the WLEP 2011 is not in the terms of the standard provision provided by the Standard Instrument (Local Environmental Plans) Order 2006, but an additional provision specific to the local government area of Wollondilly which is to be understood by reference to the legislative context of planning provisions applying to the Wollondilly local government area immediately prior to the commencement of the WLEP 2011.
Council submits that the legislative history of planning regulation in Wollondilly, in particular cl 13B of the WLEP 1991, is consistent with Council's interpretation of cl 4.1B of the WLEP 2011, and when one has regard to the context in which the WLEP 2011 and cl 4.1B in particular was made, it is apparent that the clause is a continuation, albeit with modern drafting, of the law which was in place immediately prior to the commencement of the WLEP 2011, being cl 13B of the WLEP 1991.
Council contends that cl 4.1B of the WLEP 2011 is a Wollondilly specific provision which provides an additional overlay of regulation to the minimum subdivision lot size provided for in cl 4.1 and the Lot Size Map and that its planning purpose is evident when regard is had to the clause in the context of the WLEP 2011 as a whole. In particular, Council notes that while the minimum subdivision development standard for land zoned E4 Environmental Living can be relaxed under cl 4.6(6), that is not the case if the land falls within the scope of cl 4.1B, citing cl 4.6(8)(ca).
Council points to an earlier planning proposal prepared by Council to amend the WLEP 2011. At that time, s 55 (as it then was) of the EPA Act required that prior to making an environmental planning instrument, the relevant planning authority prepare a document to explain the intended effect of the proposed instrument and justify its making. As such, Council submits that the planning proposal is a relevant extrinsic document to which recourse may be had to construe the amending instrument and understand cl 4.1B of the WLEP 2011 as originally made, including the state of the law immediately prior to the commencement of the WLEP 2011.
Council contends that the planning proposal is replete with references to the purpose of cl 4.1B of the WLEP 2011, being to apply to land zoned E4 Environmental Living, and provides several examples to support this submission, including the preservation of the landscape character, and to reduce unreasonable clustering of housing and rural land use conflict within the E4 zone.
Council referred to the legislative context of the WLEP 2011 and the planning laws in force immediately prior thereto and made the following submissions: 1. One of the stated aims of the WLEP 2011 was to make local environmental planning provision for Wollondilly in accordance with the relevant standard environmental planning instrument under s 33A of the EPA (now s 3.20); 2. As considered in the planning proposal, both cl 4.1B of the WLEP 2011 and cl 13B of the WLEP 1991 originated out of the Rural Lands Report; 3. The Rural Lands Report documented the planning justification to support an amendment to the WLEP 1991. Council submits that the purpose of the amendments, as articulated in the Rural Lands Report was to protect "productive agricultural land by providing for a balance between agriculture and the desire for rural living opportunities, as well as reducing land use conflict"; 4. The rationale for the selection of four particular areas to be zoned Environmental Protection - Rural Living, including Razorback, was identified as being "because of their highly fragmented nature and non degraded areas as well as lack of any significant agricultural enterprise." In respect of the area identified as Razorback, the Rural Lands Report states "The zone boundary for this area uses topographic boundary rather than a cadastral one. The Razorback Range has a district plateau with steep sides. The land on the plateau is capable for subdivision and buildings. The land on the slopes is not. Therefore, the boundary of the zone has been chosen as a contour line. The density for dwellings is to be measured for that land within the Rural Living zone only"; 5. The mischief to which cl 13B of the WLEP 1991 and cl 4.1B of the WLEP 2011 was and is directed is in respect of inappropriate increases in the density of rural land considered particularly suitable for buildings/living (being conferred with a rural living zone), and the mischief to which those clauses are directed would be defeated if cl 4.1B applies to any area of land identified as an "Original holding", regardless of its zoning. 6. The broader context of cl 4.1B of the WLEP 2011 indicates that it was to be but a continuation of the former cl 13B under the WLEP 1991. In turn, Council submits that cl 13B made clear that where a land unit identified as an "Original holding" was partly zoned 7(c) - Environmental Protection C (Rural Living) and partly zoned 1(b) - Agricultural Landscape, the subdivision ratio was referrable to that part of the land within Zone 7. Council contends that the planning policy of that provision should continue and be giving modern effect under cl 4.1B.
In response to the applicant's submissions, Council submits that: 1. the applicant seeks to sever cl 4.1B of the WLEP 2011 and construe subcll (2) and (3) in a literalist manner, in isolation from subcl (1), disregarding subcl (1) and giving it no work to do. Council contends that such a construction is inconsistent with the common law principle of interpretation that all words must be given meaning and effect; 2. the purpose of ensuring that there is not a significant "…increase in the development…" as referred to in subcl (1) is directly related to the density standard provided for in subcl (3), and it is unclear why the applicant relies upon subcl (2); and 3. the applicant's construction has the consequence that the stated object of the clause is defeated, and such a construction should not be adopted in circumstances where a meaning which is consistent with the stated object of the provision is reasonably open.

The proper construction of cl 4.1B of the WLEP 2011

The principles of statutory construction in relation to subordinate legislation, including environmental planning instruments such as the WLEP 2011 are well settled. Subject to some further consideration of the parties' submissions regarding interpretation below, I do not repeat them except to note that the general principles relating to the interpretation of primary legislation are equally applicable to the interpretation of environmental planning instruments: 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191at [45], [106] and Whittaker v Northern Beaches Council (No 3) [2018] NSWLEC 143; (2018) 235 LGERA 5 at [28].
In DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173; (2017) 228 LGERA 342 at [19], Preston CJ of LEC considered the proper approach in construing cl 4.1 of the Willoughby Local Environmental Plan 2012, a clause that controls the minimum lot size resulting from a subdivision of land, in terms which I respectfully adopt and consider appropriate to the present construction question. His Honour stated: At the outset, it should be noted that there are not differing principles of statutory construction applicable to primary and delegated legislation. There is not "some general principle requiring laxity or flexibility in construing delegated legislated, or statutory instruments generally": 4Nature Inc v Centennial Springvale Pty Ltd (2017) 224 LGERA 301; [2017] NSWCA 191 at [45]. The general principles relating to the interpretation of statutes are equally applicable to the interpretation of delegated legislation: Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389; [1996] HCA 36 at 398. The basic principles of statutory construction "require that the language be read in context and having regard to the objective which it was designed to promote", however "the primary focus must remain upon the text": 4Nature Inc v Centennial Springvale Pty Ltd at [51] and see Cranbrook School v Woollahra Municipal Council at [36].
In Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 ('Consolidated Media Holdings') at [39], French CJ, Hayne, Crennan, Bell and Gageler JJ opined: "This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text" (Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
Further, in Valuer-General v Fivex Pty Ltd [2015] NSWCA 53; (2015) 206 LGERA 450 at [26], Leeming JA stated: …It is wrong to approach the question of construction by confining attention to the legislative purpose and disregarding the text…
The dispute between the parties arises because of the factual circumstance that the site is partly zoned E4 Environmental Living and partly RU2 Rural Landscape, in addition to comprising part of a larger, single land unit identified as an "Original holding" under the WLEP 2011.
In essence, the applicant adopts a textual approach to the interpretation of cl 4.1B of the WLEP 2011, with the result that the clause applies to land identified on the Original Holdings Map, as stated in subcl (2). Council proposes a construction that has regard to context, including legislative history, and the other subclauses in cl 4.1B, including subcl (1), with the result that the clause applies to land that is both on the Original Holdings Map and zoned E4 Environmental Living.
Council makes detailed reference to previous studies and planning documents. I accept that there are circumstances where such material provides assistance in considering context if the words in question are unclear. I also accept that there has been a not unsubtle movement from textualism to contextualism in statutory interpretation.
The Rural Lands Report prepared in 1996 provides background in relation to planning within the Wollondilly local government area. As Council submits, the Rural Lands Report provided for three new zones and contained objectives to, inter alia, introduce planning controls "to reduce the incidents of rural land use conflict". That document referenced the earlier 1993 Wollondilly Agricultural Land Study which dealt with potential conflict between agriculture and the creation of small rural lots. It noted that there were various constraints to land, including agricultural land, relating to slope, soil type, vegetation cover and proximity to water courses and urban areas, and canvassed the need to provide a balance between urban growth and protection of high quality farmland.
Further, the Court was taken in detail to WLEP 1991, which contained cl 13B (Subdivision and erection of dwelling-houses within Zone No 7(c)) which specifically provided that Council may consent to subdivision of part of an original holdings "consisting of land within Zone No 7(c), or of land partly within that zone and the residue of which is within Zone No 1(b), only if..." and thereafter provided for restriction on the total number of lots into which the original holdings could have been divided (providing a different arithmetic calculation than the one in in cl 4.1B of the WLEP 2011).
Given that the wording of cl 13B of the WLEP 1991 is clearly different to cl 4.1B of the WLEP 2011, I do not consider Council's submissions in relation to cl 13B to be sufficiently persuasive so as to support its construction of cl 4.1B.
Although the background planning material (including the Rural Lands Report, the amendments to earlier environmental planning instruments and the planning proposal) was extensive, and accepting various concerns that were therein expressed in relation to matters including rural land use conflict and the sustainability of agricultural development within Wollondilly, I do not consider that this material determines the proper construction of cl 4.1B of the WLEP 2011. The concept of original holdings refers to discrete land units (most likely determined by ownership at a particular time) which are specifically defined and mapped in the WLEP 2011 to which specific subdivision controls have traditionally been maintained.
In the circumstances, and even considering the planning background by reference to the documents to which the Court has been directed, I consider the wording of cll 4.1B(2) and 4.1B(3) to be clear. The clause does not and should not be read as requiring that the area subject of the subdivision be both zoned E4 Environmental Living as well as being identified as an original holding.
Although I do not consider that the applicant's submissions at [13] above are strictly relevant to consideration of the heading to cl 4.1B of the WLEP 2011, it is clear that pursuant to s 35(2)(a) of the Interpretation Act, the heading to cl 4.1B is not taken to be part of the instrument. Section 34(1) of the Interpretation Act permits consideration of any material not forming part of the "the Act or statutory rule" (emphasis added) in the interpretation of a provision if it is capable of assisting in the ascertainment of the meaning of the provision. Despite the fact that s 35(5) of the Interpretation Act does not limit the application of s 34 in relation to the use of headings in the interpretation of the provision to which the heading relates, s 34 does not appear to expressly apply to environmental planning instruments such as the WLEP 2011. Accordingly, I do not consider that the heading of cl 4.1B displaces clear and ordinary meaning of the text in cl 4.1B(2). Further, I consider that using the heading would impose an unnaturally constricted meaning upon the words of the substantive provisions.
Section 33 of the Interpretation Act provides: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
Unlike s 34 of the Interpretation Act which expressly applies to "an Act or a statutory rule", by operation of s 5(6) of the Interpretation Act, s 33 applies to environmental planning instruments.
I consider that this section is more apt to apply to the overall purpose or object of an instrument (such as the aims noted in cl 2.1 of the WLEP 2011) and that caution should be exercised in the use of such aims in the interpretation of discrete clauses of an instrument.
Nevertheless, as noted above, in Consolidated Media Holdings, French CJ, Hayne, Crennan, Bell and Gageler JJ endorsed an approach to statutory construction that begins and ends with the text itself. I consider recourse to the legislative history to be neither necessary nor appropriate in the circumstances. Despite this, I have considered the "background" planning documentation relied upon by Council.
Apart from the above, while there is some force in Council's submissions regarding the role of cl 4.1B(1) of the WLEP 2011, I note the self-described "nuanced submission" made by Mr Leggat that, although the objective in that subclause has some application in the assessment of any proposal pursuant to s 4.15(1) of the EPA Act, it should not affect the interpretation of other subclauses, nor should it be seen as a "stark and objective prohibition". Mr Leggat further submits that to the extent that the "objective" needs to be given some work, any development application that may involve a "significant increase" in density involving E4 zoned land can always be rejected in relation to a particular parcel of land and, in considering any such application, the consent authority would look at the characteristics of the land including slope, landscaping and other matters such as density. The objective in subcl (1) could be achieved by rejecting a subdivision proposal following consideration of the merits.
While Mr Leggat also submits, by way of example, that the objective in cl 4.1B(1) of the WLEP 2011 is raised as a matter of (merit) consideration in Council's Statement of Facts and Contentions in the primary Class 1 appeal proceedings, I do not consider this to be persuasive (or of significance).
I consider the reference to "objective" in cl 4.1B(1) of the WLEP 2011 to be different to an "objects clause" as commonly understood, particularly where such clauses are usually intended to show how a particular enactment is to operate, and although there is some force in Council's overall construction of cl 4.1B arising from cl 4.1B(1), particularly due to its reference to "certain land within Zone E4 - Environmental Living", and although consideration of clauses, and indeed instruments as a whole is warranted, I do not find Council's construction to be persuasive in light of the stark nature of the terms that follow in cll 4.1B(2), (3) and (4).
Although the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] noted that a court should strive to give meaning to every word of the provision, the Court thereafter stated: …the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning…
I accept as a matter of principle that giving primacy to the text in engaging in a process of statutory construction does not mean that context and purpose should be disregarded, however I am also conscious of the words in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47], wherein the Court states that "…the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text". Further, at [4], [47] the Court states (footnotes omitted): [4] The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill as: dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage. … [47] …The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
Ms Novak also made detailed oral submissions in relation to what she considered to be the "mischief" to be addressed by emphasising certain aspects of the planning proposal, drawing the Court's attention to the "intended outcomes" detailed therein and the stated intention to "correct the Original holdings maps to include those lands that have been incorrectly excluded from the maps". While I accept that there were concerns in relation to the maps and other matters, I consider that Council (and/or the draftsperson) had the opportunity of changing the wording to effect these concerns (and indeed the wording that may reflect earlier clauses, including cl 13B of WLEP 1991) but did not. As to suggested mischief, I am conscious of the comments of Spigelman CJ in Commonwealth Custodial Services Ltd v Valuer General [2007] NSWCA 365; (2007) 156 LGERA 186 at [16]: ...The mischief rule is a valid approach to statutory interpretation so as to ensure that the purpose of the legislature is achieved. It does not necessarily lead to a reading down of general words, so as to confine the legislation to the mischief alone...
Ms Novak further submitted that the mischief was to avoid land use conflict. While I accept that these may have been the objectives (or "intended outcomes") of the planning proposal, before the Court is cl 4.1B in the form it has had since WLEP 2011 commenced. There may well have been, as submitted by Ms Novak, a desire to avoid inappropriate land use conflict, however, I do not find that this results in the interpretation contended for by Council.
While I accept that context and the consequences of a literal (or grammatical) construction taking into account the purpose of the instrument may sometimes require a provision to be read in a way that does not correspond to the literal (or grammatical) meaning, I do not consider that to be the case in the present circumstances.
In light of the above, I do not consider that the matters of "mischief" referred to by Council assist in the interpretation of the relevant clause given the clear text therein. That is, I do not consider that the legislative history or the extrinsic material referred to by Council displaces the ordinary meaning of the text in cl 4.1B of the WLEP 2011.
In passing, although not relevant to my consideration, I am conscious of the fact that my determination of the separate question does not deprive Council of considering various aspects it may consider appropriate when determining whether or not to grant consent to any proposed subdivision, particularly those that involve subdivision of land zoned (partly or fully) E4 Environmental Living.

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Judgment (9 paragraphs)

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