(2017) 95 NSWLR 361
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41
(2009) 239 CLR 27
Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19
(2012) 246 CLR 117
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
(2012) 248 CLR 378
Chang v Laidley Shire Council [2007] HCA 37
Source
Original judgment source is linked above.
Catchwords
(2017) 95 NSWLR 361
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41(2009) 239 CLR 27
Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19(2012) 246 CLR 117
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56(2012) 248 CLR 378
Chang v Laidley Shire Council [2007] HCA 37(2007) 234 CLR 1
CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2(1997) 187 CLR 384
Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36(1996) 186 CLR 389
Director of Public Works v Ho Po Sang [1961] AC 901
Durham Holdings Pty Ltd v State of New South Wales [1999] NSWCA 324(1999) 47 NSWLR 340
Eaton & Sons Pty Limited v The Council of the Shire of Warringah [1972] HCA 33(1972) 129 CLR 270
Esber v Commonwealth [1992] HCA 20(1992) 174 CLR 430
Harris v Hawkesbury Shire Council (1989) 68 LGRA 183
In the Matter of Richards Contracting Co Management Pty Ltd [2021] NSWCA 34(2021) 104 NSWLR 385
In re AthlumneyEx Parte Wilson [1898] 2 Q.B. 547
Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162
Lederer v Sydney City Council [2001] NSWLEC 272(2001) 119 LGERA 350
Master Education Services Pty Limited v Ketchell [2008] HCA 38
(2008) 236 CLR 101
Mathieson v Burton [1971] HCA 4
(1971) 124 CLR 1
Maxwell v Murphy [1957] HCA 7
(1957) 96 CLR 261
Minister Administering Water Management Act 2000 v Sharkey [2017] NSWCA 319
(2017) 226 LGERA 322
R v A2
R v Magennis
R v Vaziri [2019] HCA 35
(2019) 269 CLR 507
Robertson v City of Nunawading [1973] VR 819
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
(2010) 241 CLR 252
Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
(2017) 262 CLR 362
The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424
(2004) 137 LGERA 178
Ungar v City of Malvern [1979] VR 259
Valuer-General v Fivex Pty Ltd [2015] NSWCA 53
(2015) 206 LGERA 450
Western Australian Planning Commission v Temwood Holdings Pty Limited [2004] HCA 63
Judgment (5 paragraphs)
[1]
The Application of s 30 of the Interpretation Act
The parties correctly agreed that s 30(1) of the Interpretation Act applies to environmental planning instruments such as the RLEP (s 5(6) of that Act).
As was observed in In the Matter of Richards Contracting Co Management Pty Ltd [2021] NSWCA 34; (2021) 104 NSWLR 385, s 30(1) is a statutory reflection of the position at common law (at [81]):
81 Section 30(1) is consistent with the position at common law. The position was summarised by Dixon J in Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647; [1945] HCA 29 as follows (at 652):
"As the request for a hearing of the appellant's application for redemption had been filed before Act No. 42 of 1944 came into operation, this case might be dealt with on the limited question whether the amendment effected by s. 4(g) of that statute in clause 18 of the First Schedule of the Workers' Compensation Act 1912-1941 applied to pending proceedings. But it is more satisfactory to decide the wider question whether the amendment applies to cases in which the injury by accident was caused to the worker before the amending Act came into force. The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred. In other words, liabilities that are fixed, or rights that have been obtained, by the operation of the law upon facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends, appears with reasonable certainty. But, when the alteration in the law relates to the mode in which rights and liabilities are to be enforced or realized, there is no reason to presume that it was not intended to apply to rights and liabilities already existing and its application in reference to them will depend rather upon its particular character and the substantial effect that such an operation would produce."
See also Maxwell v Murphy (1957) 96 CLR 261 at 266-267; [1957] HCA 7.
[2]
Section 30(1)(b) of the Interpretation Act
Network submitted that because it was incontrovertible that the application for the CDC was commenced under the RLEP, by application of s 30(1)(b) of the Interpretation Act the amendment made by Amendment 28 did not affect a "previous operation of the RLEP", including the Land Use Table for the R2 zone. That is, by operation of s 30(1)(b), the process of determination of the CDC application was continued as if the RLEP had not been altered by Amendment 28.
Importantly, this outcome was said to result even if cl 1.8A(3) was construed only to apply to development applications as defined in s 1.4(1) of the EPAA.
While the application for the CDC was lodged prior to the commencement of Amendment 28, it had not yet been determined. In this sense, therefore, nothing had "commenced" pursuant to s 30(1(b) of the Interpretation Act and s 30(1)(b) has no application.
Adopting similar reasoning, the same conclusion was arrived at in Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162 (at 191 per Dowsett J):
To similar effect is the decision in Nunawading at 825-826. It follows from these cases that s. 20(1)(b) in its previous form did not permit an extant application to proceed to ultimate determination as if the amendment had not occurred. However, the appellant submits that in its present form, the section protects a process begun under legislation which has been subsequently amended or repealed and that such process may be continued as if the amendment or repeal had not occurred. I am unable to accept this submission. Given the narrower meaning traditionally attributed to precursors of s. 20(1)(b), it is likely that Parliament intended that things the subject of this paragraph be protected in the same way as were things the subject of its precursor, although the range of such things was extended by the addition of the word "begun". In other words, as in Ho Po Sang, the act or process suffered, done or begun is not affected, but it cannot be carried to completion if the law in its amended form does not allow of that course.
In any event, I cannot identify anything which can be reasonably described as "begun" in this case. The word implies the commencement of a process which remains incomplete. It is possible to describe an application for an approval as the beginning of the process of obtaining that approval, but such is not a common usage. It is more common to say that one has made an application for approval than that one has begun a process which may lead to the obtaining of approval. The word "begun" is more appropriately used in connection with proceedings such as legal proceedings which have a recognizable continuity over a period of time. Applications involving a series of prescribed sequential steps might also be described as "begun". There may be other examples. The present application had to be either granted or refused. It cannot be comfortably described as "begun" simply because it had not been decided. Even assuming that the application began some process, that process was not begun under the repealed provision which said nothing about such an application. Although it is likely that in order to obtain an approval under the former s. 153, some sort of application would have been made, such a step was not expressly contemplated by s. 153. The application cannot be accurately described as "begun" under the repealed provision.
[3]
Section 30(1)(c) of the Interpretation Act
Again, s 30(1)(c) of the Interpretation Act is subject to any contrary intention (s 5(2) of that Act). Therefore, it is strictly not necessary to determine if an application for a CDC constitutes a "right" or "privilege … acquired" or "accrued" for the purpose of s 30(1)(c) of the Interpretation Act because, as held above, a contrary intention is manifest by the plain and unambiguous words of cl 1.8A(3), namely, that the savings clause only applies to development applications and not to all applications for development approval, including CDCs.
The question that arises if this conclusion is wrong, however, is whether Amendment 28 affected any relevant right or privilege accrued by the making of the CDC for the purpose of engaging s 30(1)(c) of the Interpretation Act.
The words "right, privilege … acquired" or "accrued" are to be given a wide construction and are not to be used in a technical sense (Western Australian Planning Commission v Temwood Holdings Pty Limited [2004] HCA 63; (2004) 221 CLR 30 at [96] and Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1 at [117]).
But the words have limits (Chang at [116]). There is no right to take advantage of an existing statute (Mathieson v Burton at 23).
The operation of s 30(1)(c) of the Interpretation Act cannot be considered absent a clear understanding of the nature of the rights claimed to have arisen under a particular statute (In the Matter of Richards Contracting at [84]).
Initially, Network claimed that the right was "the right to have the application determined according to the law as it stood at the time of the making of the application because the nature of the discretion was non-discretionary" (T28:26-28). However, after some discussion, the nature of the right claimed was refined to having the CDC application determined pursuant to the RLEP as unaltered by Amendment 28 (T28:36-41).
Network relied on later decisions in Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 and Lederer v Sydney City Council [2001] NSWLEC 272; (2001) 119 LGERA 350 to argue that a development approval (including a CDC) granted under a particular statutory regime constituted a privilege or a right for the purpose of s 30(1)(c) of the Interpretation Act, contrary to the earlier obiter dicta expressed in Eaton & Sons Pty Limited v The Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270 (at 293-294 per Stephen J, references omitted):
…there are two features of consent granted under schemes such as those here in question which appears to me to make it inappropriate to speak of them as conferring either a "right" in the narrow or wide sense or a "privilege". First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor; I would think that a mere trespasser could justify his use of land in terms of town planning controls by reference to some prior consent successfully applied for by a prior lawful occupier. For this reason it appears to me to be inappropriate to regard such a consent as conferring rights or privileges in the sense in which I understand those words to be used in cl. 65(1)(b). It is well established that in provisions such as cl. 65(1)(b) no alleged right can be protected so long as it is one common to the community as a whole. As it was said in Abbott v. Minister for Lands, there must be an "act done by an individual towards availing himself of that right" before it can be said to be "a 'right accrued' within the meaning of the enactment". What are protected are rights which have been acquired by or have accrued to an individual; consents under the present schemes do not confer rights of this character.
Secondly, I doubt whether it is proper to regard as a "right" or "privilege" acquired or accrued under the County Scheme what is no more than the relaxation of a prohibition imposed by that very Scheme. The Scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant's land enable the renewed exercise of that liberty in very qualified way if a consent from the responsible authority was first sought and obtained. To describe that situation as one in which a right or privilege had accrued to or been acquired by the appellant under the Scheme appears to be to be a misuse of language; the effect of the Scheme when a permit is issued under it is merely that users of relevant land are in part remitted to their former liberties at general law.
[4]
Conclusion and Orders
It follows that the declaratory relief sought in the summons as to the invalidity of the CDC ought to be granted, together with the consequential injunctive relief described therein.
These being Class 4 proceedings where costs usually follow the event, and there being no reason to depart from this general rule, Network must pay the Council's costs of the proceedings.
The formal orders of the Court are therefore as follows:
1. the Court declares that the CDC issued to Network by Waratah pursuant to s 4.28 of the EPAA on 26 March 2021 is invalid;
2. Network is restrained from undertaking any development in reliance upon the CDC;
3. Network is to pay the Council's costs of the proceedings as agreed or assessed; and
4. the exhibits are to be returned.
[5]
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: 08 August 2022
Parties
Applicant/Plaintiff:
Council of the City of Ryde
Respondent/Defendant:
Network Developments NSW Pty Ltd
Cases Cited (47)
[2017] NSWCA 319; (2017) 226 LGERA 322
R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2019) 269 CLR 507
Robertson v City of Nunawading [1973] VR 819
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178
Ungar v City of Malvern [1979] VR 259
Valuer-General v Fivex Pty Ltd [2015] NSWCA 53; (2015) 206 LGERA 450
Western Australian Planning Commission v Temwood Holdings Pty Limited [2004] HCA 63; (2004) 221 CLR 30
Wingecarribee Shire Council v De Angelis [2016] NSWCA 189
Texts Cited: Perry Hertzfeld and Tom Prince, Interpretation (2nd ed, LawBook Co, 2020)
Category: Principal judgment
Parties: Council of the City of Ryde (Applicant)
Network Developments NSW Pty Ltd (First Respondent)
Waratah Certifiers Pty Ltd (Second Respondent)
Representation: Counsel:
S M Berveling (Applicant)
T To (First Respondent)
Submitting Appearance (Second Respondent)
Submissions of the Parties
The submissions of the Council may be summarised as:
1. first, cl 1.8A(3) of the RLEP is clear and unambiguous insofar as it relates only to development applications made but not finally determined before the commencement of Amendment 28. It makes no reference to a CDC, and therefore, cl 1.8A(3) cannot save the CDC;
2. second, as a consequence, upon the commencement of Amendment 28 on 5 March 2021, cl 3B.1 of Pt 3B of the Codes SEPP no longer permitted development with consent for the purpose of multi dwelling housing, which included the proposed manor house on the site; and
3. third, therefore, because the development was prohibited as at 5 March 2021, Waratah did not have the power to issue the CDC on 26 March 2021.
In reply, Network contended that the CDC was able to be determined as if the amendment to the Land Use Table in the RLEP occasioned by Amendment 28 had not been made, and therefore, development for the purpose of multi dwelling housing remained permissible in the R2 zone with the consequence that the CDC was lawfully granted. This was because:
1. first, the application of cl 1.8A(3) of the RLEP did not have the effect that the Council contended having regard to the context and subject-matter of the clause as a savings provision and by analogy with the presumption against retrospectivity (see Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 266-267). Were it otherwise, Amendment 28 would operate unjustly and unfairly with respect to applications for CDCs lodged before Amendment 28 came into force. Accordingly, cl 1.8A(3) should be construed to encompass all applications to carry out development, including CDCs. This was consistent with the substance of the Gateway determination report;
2. second, the operation of s 30(1)(b) of the Interpretation Act meant that the amendment made by Amendment 28 did not affect the previous operation of the RLEP, including the Land Use Table for the R2 zone; and
3. third, the operation of s 30(1)(c) of the Interpretation Act expressly preserved accrued rights, which included the making of the application for the CDC.
The Proper Construction of Cl 1.8A(3) of the RLEP
The general principles relating to the interpretation of primary legislation are equally applicable to the construction of subordinate legislation, which includes environmental planning instruments such as the RLEP (Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389 at 398, Master Education Services Pty Limited v Ketchell [2008] HCA 38; (2008) 236 CLR 101 at [19] and 4Nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191; (2017) 95 NSWLR 361 at [45]).
These principles require that the legislative language be read in context having regard to the objectives that it was designed to promote, however, the primary focus must remain on the text (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], 4Nature at [51] and Valuer-General v Fivex Pty Ltd [2015] NSWCA 53; (2015) 206 LGERA 450 at [26]).
The context in which subordinate legislation is to be construed includes the legislation under which it is enacted (Ketchell at [19]). Therefore, the intention of the legislation as indicated in the enabling Act will be a primary guide to the meaning of delegated legislation, such as the RLEP.
Generally, and subject to any contrary intention, where an Act confers the power to make an instrument, expressions used in that instrument have the same meaning as the enabling legislation. This is consistent with s 11 of the Interpretation Act which provides that:
11 Words etc in instruments under an Act have same meanings as in the Act
Words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made.
Therefore, having regard to the definition of "development application" in s 1.4 of the EPAA, it would appear that a development application does not include a CDC for the purpose of the EPAA, and hence, cl 1.8A(3) of the RLEP does not apply to save the CDC.
Network, however, referred to the chapeau of s 1.4(1) of the EPAA to argue that the "context or subject-matter" of the definition of "development application" in that Act included the fact that s 1.8A(3) of the RLEP was a savings provision seeking to preserve the pre-existing state of the law so that applications for development approval that had been made but not determined prior to Amendment 28 remained untouched by the change in law.
Another aspect of the context was that, according to Network, cl 1.8A(3) "is informed by, and gives effect to" the common law presumption, according to network, against retrospectivity as a means of avoiding unfairness or injustice to those who had lodged "applications" before Amendment 28 came into effect.
While not binding on this Court, the reasoning is nevertheless apposite.
In any event, Network's submission can be rejected for more fundamental reasons. Section 30(1) of the Interpretation Act is subject to any contrary intention (s 5(2) of that Act). And as determined above, a contrary intention is manifest by the plain and unambiguous words of cl 1.8A(3) of the RLEP, namely, that the provision only applies to development applications and not to all applications for development approval. In other words, the legislature intended to abrogate permissibility with consent applying to multi dwelling housing within the R2 zone, with the only exception being to development applications lodged prior to Amendment 28 coming into effect.
This conclusion is consistent with the underlying rational of s 30(1), namely, to give statutory force to the common law presumption against retrospectivity (Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117 at [24]). It is therefore unsurprising that the same result as that arrived at above with respect to the common law presumption against retrospectivity is obtained by the application of s 30(1)(b) of the Interpretation Act.
In my opinion, neither Harris nor Lederer assist and are distinguishable from the present case insofar as they concerned a development consent that had already been determined and granted prior to the change in law. That is not the case here. The CDC had not been determined as at the date that Amendment 28 came into effect.
Furthermore, earlier authorities such as Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 (at 618-620), Robertson v City of Nunawading [1973] VR 819 (at 825) and Ungar v City of Malvern [1979] VR 259 (at 264 and 265-266) have held that resort to an enactment by the making of an application under which there is an expectant benefit or advantage from that application, is not productive of a right or privilege that cannot be impaired by a change in legislation.
However, these cases do not necessarily sit easily against authorities such as The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178 and In the Matter of Richards Contracting.
In The Dubler Group, it was held that an appellant who appealed to the Court against the deemed refusal of a development application acquired a right when the relevant environmental planning instrument was amended to effectively exclude the development the subject of the appeal from certain saving provisions. The Court of Appeal, after observing that "the distinction between what is and is not a right is often a fine one" (at [29]), held that the savings provisions put a person who had made a development application in a special position in the determination of that application, and therefore, the person acquired a relevant right for the purpose of s 30(1)(c) (at [29]-[30]. Citing Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430). While the appellant did not have an entitlement to an appeal, it had acquired an entitlement to have its development application determined according to the planning instrument as it stood at the time the application was lodged. In other words, this was more than the mere taking advantage of an enactment because the advantage had already been taken and the entitlement had already arisen (at [36]).
In the Matter of Richards Contracting was not a planning case but concerned the reinstatement of a company in order to obtain a judgment against it in the Dust Diseases Tribunal by a plaintiff. Again, the Court of Appeal held that the plaintiff had accrued a right as a person aggrieved to seek the reinstatement of the putative defendant company as at the time legislation conferring this right was repealed. The plaintiff's claim against the company had crystallised prior to the abrogation of the legislation. The right was not merely to approach the court for the exercise of a discretion in the plaintiff's favour (at [102]). The effect of the repeal of the legislation was to deprive the plaintiff of an accrued cause of action against the company. It amounted to more than an asserted right to take advantage of an enactment available to all members of a class (at [103]-[105]).
Both The Dubler Group and In the Matter of Richards Contracting can be distinguished from the present facts, and moreover, upon further analysis may be reconciled with Sofi, Nunawading and Malvern. In The Dubler Group the development application had been determined by way of refusal. Similarly, in In the Matter of Richards Contracting, the plaintiff's cause of action against the company pre-existed the repeal of the legislation because he had been certified as having a dust disease (silicosis), a necessary precondition to commencing an action against the deregistered company. In both decisions, therefore, the right had already accrued prior to the change in the law.
That is not this case, where no determination of the CDC application had been made by Waratah prior to the amendment of the RLEP. The asserted right that accrued to Network was, to use the language in In the Matter of Richards Contracting, merely to take advantage of a enactment available to all members of the community (at [104]). That is not an accrued right falling within the purview of s 30(1)(c) of the Interpretation Act.
Does the nature of the evaluative process by Waratah in respect of the application for a CDC compel a different conclusion?
Network argued that it did. It submitted that the more open discretionary nature of the assessment of a development application compared to the more rigid evaluation process required to determine an application for a CDC, gave rise to a relevant right that was preserved by the operation of s 30(1)(c) of the Interpretation Act (citing Durham Holdings Pty Ltd v State of New South Wales [1999] NSWCA 324; (1999) 47 NSWLR 340 at [28], Kentlee at 168 and Esber. Cf Director of Public Works v Ho Po Sang [1961] AC 901). That is, a right to the grant of a CDC once material facts, namely, objective conformity with prescribed development standards, were established.
I do not accept the submission. First, that such a distinction (between discretionary inchoate rights and non-discretionary choate rights) exists is not clear on the authorities that the Court was taken to. In neither Esber, Durham nor Kentlee was the position expressed as unequivocally as Network suggested.
Second, while the evaluative determination by a certifier is materially different to the more plenary discretionary decision-making power exercised by a consent authority when assessing a development application (compare ss 4.15 and 4.28 of the EPAA), it is not correct to assert, as Network does, that the certification process amounts to mere administrative box ticking. The Council took the Court to various aspects of the Codes SEPP to demonstrate that there was no guarantee of certification of the development having regard to the evaluative assessment required by Waratah in determining whether the proposed manor house amounted to complying development. This proposition may be accepted.
In my view, there is not, as Network contended, such an absence of discretion that would, analogous to the result in In the Matter of Richards Contracting, compel the conclusion that a right had accrued for the purpose of s 30(1)(c) of the Interpretation Act.
Finally, and for the sake of completeness, I reject the submission made by the Council that s 30(1)(c) of the Interpretation Act is not engaged because the RLEP neither provided for the right to lodge the application for the CDC nor did it deal with the issue of the permissibility of the proposed development for a manor house, both of which were occasioned by the operation of the EPAA and the Codes SEPP.
Were there a relevant right, that right accrued under the RLEP insofar as the development was either permissible with consent or prohibited under that environmental planning instrument. If not the former, then the assessment process under the EPAA and the Codes SEPP was not engaged. That is, it was the permissibility of the proposed development under the RLEP that enlivened any assessment under the EPAA and the Codes SEPP.
Network relied upon the Gateway determination report, which it claimed was the source of the savings provision, to support an expansive interpretation of cl 1.8A(3) of the RLEP to include applications for CDC on the basis that the report expressly referred to both development applications and CDCs.
Network therefore contended that the proper construction of cl 1.8A(3) of the RLEP meant "applications to carry out development". Otherwise, Amendment 28 applied differently to development applications compared to CDCs, which led to perversity and was incompatible with the objective of the savings provision.
Accordingly, Network submitted that when regard is had to context, the term "development applications" in cl 1.8A(3) does not have an identical meaning to that contained in s 1.4(1) of the EPAA, but means "applications to carry out development", which encompasses CDCs.
There is no doubt that if the definition of "development application" contained in s 1.4(1) of the EPAA is imported into cl 1.8A(3) of the RLEP, the outcome is that, while development applications for multi dwelling housing such as a manor house are saved by the clause, applications for CDCs are not.
But however "perverse" this result may appear, it is what the text of cl 1.8A(3) of the RLEP demands and there is no warrant for the construction afforded to the provision mooted by Network, even when recourse is had to context.
First, this conclusion is mandated by the express language of the clause; it is what it states. The words are plain and unambiguous. The text does not say, as it so easily could have done, "applications for development". To interpret the term "development application" in this manner is to insert words into the provision that cannot be justified. The provision is tolerably clear on its face.
Second, while unreasonable results are to be avoided in the construction of legislation, including environmental planning instruments (Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]), the application of this canon of interpretation depends upon the care with which the language in question has been used in the instrument (4Nature at [44]-[45] and [107]-[108]). The approach has, therefore, been held to be inapplicable to a State environmental planning policy which used language taken directly from the empowering Act (4Nature at [44]-[45] and [107]-[108]). As was stated in Minister Administering Water Management Act 2000 v Sharkey [2017] NSWCA 319; (2017) 226 LGERA 322 (at [36]):
36 … the Minister submits that subordinate instruments such as those in question here should be given a "practical interpretation". It is said the construction adopted by the primary judge leads to impractical consequences making it unlikely that interpretation could have been intended. The principle is that stated by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 934. However, as was emphasised by Basten JA (McColl and Payne JJA agreeing) in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20] that principle "does not, however, require an abandonment of basic principles of statutory construction, which require attention to the language of the instrument and its apparent purpose".
The term "development application" is expressly defined in s 1.4(1) of the EPAA to exclude CDCs. In the absence of any contrary indication, it may be assumed that the drafters of cl 1.8A(3) of the RLEP were aware of this definition and did not intend to deviate from it. This is a powerful contextual indicator that the term "development application" in cl 1.8A(3) does not include CDCs.
Third, recourse to the presumption against retrospectivity, even if by analogy, does not assist Network. Although the presumption is, according to the learned authors Perry Hertzfeld and Tom Prince in Interpretation (2nd ed) (LawBook Co, 2020) a longstanding one, it may be rebutted by express words or necessary intendment (pp 236-237). In the present case, the retrospective operation of cl 1.8A(3) cannot be avoided "without doing violence to the language of the enactment" in the manner described immediately above (Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 22 quoting In re Athlumney; Ex Parte Wilson [1898] 2 Q.B. 547 at 551). Put another way, for the presumption to apply, cl 1.8A(3) of the RLEP would require rewriting as proposed by Network in a manner contrary to the text, and as it transpires, the context of the enactment of the provision.
Fourth, the same conclusion is reached having regard to the content of the Gateway determination report, contrary to the reliance placed upon it by Network.
The modern approach at common law in relation to the use of extrinsic material is that any material may be considered (CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 at 408 and SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] and [36]-[37]).
Limits are, however, placed on the use that is made of the extrinsic material. Thus it cannot be used to displace the text where there is no ambiguity, or to place upon words a meaning that they cannot reasonably bear. In other words, it is erroneous to look at extrinsic materials, as Network seeks to do, prior to exhausting the application of the ordinary rules of statutory construction (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [33]).
While the reasoning in CIC Insurance and Saeed is not easily reconciled, the approach in CIC Insurance has been subsequently endorsed (SZTAL at [14] and [36]-[37] and R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2019) 269 CLR 507 at [33]). Nevertheless, it remains the case that extrinsic material cannot displace unambiguous statutory text and in the present case, for the reasons given above, the legislative language is sufficiently clear (Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [70]).
It is accurate to note that the Gateway determination report refers to the desire to prohibit multi dwelling houses "whether it be through a complying development certificate or development consent" and recommends that a savings and transitional clause be included to ensure that "any development applications lodged and not determined" are not adversely impacted by the proposed changes. Network relied, in particular, on the express reference to CDCs and the reference to the plural of "development applications" in the Gateway determination report to submit that the report was recommending that the savings and transitional clause that resulted in the promulgation of cl 1.8A(3) of the RLEP included applications for both development consents and CDCs.
In my opinion, this contention must be rejected when regard is had to the content of the Gateway determination report because:
1. the Gateway determination report makes it abundantly clear that multi dwelling housing that would otherwise be complying development was to be prohibited;
2. the reference to development consents and CDCs also make it clear that the difference between the two forms of approval was understood, was to be maintained and was not conflated by reference to "development application" or "development applications". If the report had intended to include CDCs in its recommended savings and transitional provision, it would have done so by including, as it did elsewhere in the report, an explicit reference to that form of approval;
3. there is extensive reference throughout the report to the concept of a "development application" and not to development approvals or applications for development (which would arguably include CDCs); and
4. the reference to "development applications" is, on any reasonable construction of that term, a reference to more than one development application. It ought not be construed as a reference to applications for CDCs and other forms of development approvals.
In my view, therefore, the Gateway determination report confirms the meaning of the phrase "development application" in cl 1.8A(3) of the RLEP as excluding CDCs.
If there was any ambiguity created by the Gateway determination report it could have been clarified by the Gateway determination published 1 June 2020. It was not. Rather, the same term was used, namely, "development application" thereby reinforcing the conclusion that the savings and transitional provision only applied to, as its text plainly indicated, development applications and not CDCs.
Fifth, and finally, far from resulting in "perversity", one explanation for the RLEP saving development applications for multi dwelling houses in the R2 zone and not applications for a CDC in respect of the same development, is because, as was recognised by Network, an application for a CDC is not the same as an application for a development consent. Whereas the latter involves the exercise of a detailed and considered evaluative decision-making discretion (see ss 4.12 and 4.15 of the EPAA), the former does not (see s 4.2(5) of the EPAA). A CDC is granted once specified predetermined development standards are met (s 4.28(3) of the EPAA). If, as was evident by the Gateway determination report, the purpose of Amendment 28 was to give effect to the intention to prohibit all multi dwelling housing in the R2 zone for the reasons expressed therein, the different results in the application of the savings provision contained in cl 1.8A(3) of the RLEP reflects the different ability to regulate such development under the two approval processes. Unlike an application for a CDC where, upon a finding that the specified predetermined development standards have been met the CDC must be issued, the assessment of a development application is more complex and polycentric decision-making process, resulting in the exercise of a discretion to refuse, approve, or approve the development subject to the imposition of conditions. In respect of a development application the consent authority therefore has far greater assessment oversight over the proposed development.
It follows that unless the application of s 30(1(b) or (c) of the Interpretation Act provides a separate basis for the lawfulness of the CDC it is invalid because cl 1.8A(3) only operates to save development applications and not CDCs.