Findings
13 There is a number of answers to the council's submissions which, in my opinion, show that sub-s 80A(6) of the EP&A Act is the exclusive and only source of power for a consent authority to require the provision of security as a condition of development consent and is limited to the circumstances set out in that subsection.
14 Firstly, in Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62, Pearlman J, in allowing an appeal for the strata subdivision of a residential flat building, said in relation to a disputed condition, at [51]:
Proposed condition 16 would have imposed a security bond on the applicant for the purpose of ensuring the maintenance of the landscaping. The applicant objected on the ground that such a bond did not fall within the scope of bonds permitted by s 80A(6) of the Environmental Planning and Assessment Act 1979 . These provisions of the Act empower the consent authority to require such a bond in limited circumstances and it is clear that the protection or maintenance of landscaping on private property is not amongst those permitted purposes. I decline therefore to impose this condition.
15 I acknowledge, however, that there is nothing in her Honour's judgment which suggests that the question was fully argued. There is no reference to any submissions on the question, and no reasons are given for her Honour's conclusion.
16 Secondly, the opening words of sub-s 80A(6) do not contain the well-known formula of words, "without limiting the generality of the foregoing…". As noted by Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679, such words - absent here - evince an intention that the general power should be given a construction that accords with the width of the language in which it is expressed and that this construction is not to be restricted by reference to the more specific character of that which follows.
17 Thirdly, there is a presumption of statutory construction that where a statute confers both a wide general power not subject to special limitations or qualification, and a special power that is subject to limitations or qualifications, the general power cannot be exercised to do that which is the subject of the special power: see Halsbury's Laws of Australia, vol 24, at [385-270], Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7. A parallel presumption is expressio facit cessare tacitum: where there is express mention of certain things, then anything else not mentioned is excluded. The presence of sub-s 80A(6) suggests that these presumptions apply.
18 Fourthly, a further parallel presumption of statutory construction is generalia specialibus non derogant: where there is a conflict between general and specific provisions, the specific provisions prevail. In the present case sub-s 80A(6) is clearly a special power governing conditions of development consent concerning security.
19 Fifthly, the heading to sub-s 80A(6) is expressed in terms which suggest exclusivity - "conditions and other arrangements concerning security." The word "security" is unqualified. Although a heading to a provision of an Act is not part of the Act (s 35(2) of the Interpretation Act 1987), it may be used as an aid to construction (s 35(5) Interpretation Act 1987). The heading may thus be used as an aid to construction: (a) to confirm that the meaning of the words in sub-s 80A(6) are the ordinary meaning; or (b) to determine the meaning of sub-s 80A(6), if the provision is ambiguous or obscure, as to whether its terms are exhaustive. In applying the latter aid to construction, the heading, as noted above, suggests exclusivity.
20 Sixthly, the council's reliance on the judgments of the Court of Appeal in Fairfield City Council v N&S Olivieri Pty Ltd is misplaced. In Olivieri, the council had imposed a condition of development consent requiring the developer to construct road works on adjacent land. Under s 94 of the EP&A Act, consent authorities are only able to impose conditions on consents requiring the dedication of land free of cost, or the payment of a monetary contribution, or both, for public amenities or public services - but only if they follow s 94. In Olivieri, the Court of Appeal held that the conditions for the carrying out of work, allowed by the then sub-s 91(3)(f) - now sub-s 80A(1)(f) - are not subject to the constraints of s 94. That is, s 94 only constrains the power of a consent authority to impose conditions requiring the dedication of land free of cost or a monetary contribution - it has no application to a condition requiring a developer to undertake work at its own expense.
21 The decision in Olivieri is unsurprising. However, as pointed out by Dr J E Griffiths SC, appearing for the applicant, there is a number of reasons why the decision is of no relevance to the present case. The argument in Olivieri was that s 94 applied not only to the dedication of land and the payment of monetary contributions, but extended to other commercially equivalent matters. But here, the argument is that sub-s 80A(6) is an exclusive source of power to impose a condition requiring any security and the security conditions imposed here do not fit within the subsection. Another significant distinction is that there was an alternative source of power to impose the condition in that case - sub-s 91(3)(f), since re-enacted as sub-s 80A(1)(f), noted in par [6] above. In Olivieri, Spigelman CJ attributed a particular significance to the existence of an explicit power enabling the imposition of a condition requiring the carrying out of works (at pars [23] - [25] of the judgment). No similar specific power exists to enable the imposition of the kind of conditions in dispute in this case.
22 A further difference is the detailed regime in sub-ss 80A(6) to (10) regulating the matters in respect of which security may be required, requiring that the security is to be for a reasonable amount, providing a choice as to how the security is to be provided and regulating the use to which the security may be put and how any balance is to be dealt with. If a consent authority has a general power to require a security other than as provided for in sub-s 80A(6) then it is able to avoid most of these protective provisions.
23 Seventhly, s 98A does not create a power to require the provision of security. The existence of s 98A is against the council's contentions. On the contrary, it confirms the fact that sub-s 80A(6) is the sole or exclusive power to impose a condition requiring the provision of security. What s 98A does is provide a separate right of appeal against the imposition of such a condition, including a right of appeal against the failure or refusal of the consent authority to release a security held by it - a right of appeal which does not exist under the general right of appeal under s 97 of the EP&A Act. If sub-s 80A(6) were not the sole or exclusive power to impose a condition of consent requiring the provision of security, then such a condition imposed under the general power to impose conditions would not be the subject of any right of appeal against the failure or refusal of the consent authority to release a security held by it.
24 Eighthly, neither does s 121ZJ of the EP&A Act create a power to require the provision of security, as noted in pars [10] - [11] above. Mr Craig submits that since the consent authority has a right to enter upon its own land to enforce sub-s 80A(6) then sub-ss 121ZJ(6) and (7) must refer to the provision of security generally as a condition of development consent. I am unable to agree. Section 121ZJ relates specifically to situations where a person has failed to comply with an order under s 121B. It might be suggested that if a council decides to issue an order under s 121B, then it has elected to go down that path, rather than exercise its powers under sub-ss 80A(6) to (10). If the council chooses to go down the s 121B path, then it could be said that it has elected to follow the procedures governing the giving of orders, which would in turn give rise to the need for provisions such as sub-ss 121ZJ(6) and (7).
25 I conclude, therefore, that the applicant succeeds in the first of the questions raised for separate determination, noted in par [4] above.