I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the practical trade or industry … so they ought to be construed in light of practical considerations rather than by a meticulous comparison of the language of their various provisions such as might be appropriate in construing of an Act of Parliament.
21 These comments of Lord Reid have been cited and adopted in interpreting and applying subordinate legislation, including planning instruments: Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531; 36 LGRA 159 at 163-164; Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323; GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51 at 53; Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 at 236.
22 The thrust of Mr Harris' argument focuses on the words "depends on" in the clause. In North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247, Kirby P said (at 245):
In Towne v Eisner 245 US 418 (1918), Holmes J, in the Supreme Court of the United States of America, said (at 425):
A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.
23 In the same case Kirby P called in aid the apparent policy of the instrument. In the present case, the stated objectives of the LEP include, "in relation to conservation, to protect, conserve and provide for the enhancement of items of environmental heritage": cl 2(2)(h).
24 This objective would be achieved if income from tourist accommodation would "assist in" or "contribute to" the conservation of the heritage item. Looseness of expression and the interchangeability of words are not uncommon in subordinate legislation. As noted by Kirby P, words may vary greatly in colour and content according to the circumstances in which they are used. In my view the requirement that "the conservation of the building depends on the granting of the consent" is, in the circumstances, met if the consent "assists in" or "contributes to" the conservation of the building, since that would achieve the objective described in cl 2(2)(h). Moreover, as has been said elsewhere, "the machinery of government would not work unless it were allowed a little play in its joints".
25 Clause 36 required the council to be satisfied that the conservation of Noraville House depends, in the relevant sense, on the granting of the consent. It was open to the council to be satisfied that the conservation of Noraville House depends on the funding to be received through the operation of the proposed tourist accommodation. It had the Andrews Neil letter of 14 August 2002 to which was annexed the schedule of required works. Moreover, it was the council that had to be satisfied under cl 36, not the Court.
26 If I am wrong, however, s 101 of the EP&A Act operates to prevent any challenge to the validity of the consent, whether that challenge is based on either the first or the second ground of alleged invalidity.
27 Section 101 is as follows:
101 Validity of development consents and complying development certificates
If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.
28 Mr Harris submits, however, that s 101 does not protect the consent in the present case. He relies, in particular on an assertion that the grounds relied upon in this case are inviolable restraints which amount to an essential, indispensable, imperative duty which s 101 does not protect, citing Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 and Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695.
29 Mr Harris submits that there are at least two ways to avoid s 101 - one is by being able to bring oneself within the Hickman principle and another is by being able to establish that a statutory requirement sought to be protected by s 101 is such an essential feature of the legislative scheme in which it forms a part that it could not possibly have been the parliament's intention that a privative provision operate in relation to it.
30 Mr Harris concedes that, on the state of the law at the present time, particularly as a consequence of the Anambah Homes decision, the facts in this case do not infringe the Hickman principle: R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 615. That is, he concedes that I am bound by authority to find that the granting of the consent was a bona fide attempt to exercise the power; that it related to the subject matter of the legislation; and it is reasonably capable of reference to the power given to the council. Mr Harris also concedes that I am bound by authority to find that s 101 protects a decision or determination from jurisdictional error: Woolworths Ltd v Pallas Newco Pty Ltd at 723 [79] and [80] per Spigelman CJ (Mason P, Sheller JA and Cripps AJA concurring).
31 In making these concessions, however, Mr Harris acknowledges that I am bound by the authorities to which he referred, but he does not wish it to be taken that if the matter were to go further he may not wish to assert to the contrary. That is, Mr Harris indicated that these are questions which he may wish to re-open if this case were to go elsewhere, but it was pointless in arguing to the contrary before me, acknowledging that I am bound to follow the authorities.
32 In Pallas Newco, Spigelman CJ nevertheless accepted that a provision containing a restriction or requirement may nevertheless be construed as being of such significance in the legislative scheme that it constituted a limitation or requirement that is "essential", "indispensable", "imperative" or "inviolable". In Lesnewski, the Court of Appeal expressly held (at [76]), that s 101 does not protect against such a restriction or requirement. In Anambah Homes, Spigelman CJ listed (at [19]) the kinds of matters that have been found to be inviolable restraints.
33 The applicant submits that it was the intention of the legislature that any approval given in breach of s 76B of the EP&A Act would be invalid. That section states that if an environmental planning instrument provides that specified development is prohibited on land to which the provision applies, a person must not carry out the development on that land. Moreover, the applicant submits that it could not have been the intention of the legislature, having established a statutory prohibition which is so clear and succinct, that a breach of that prohibition would not make the approval given invalid.
34 The question of whether a particular requirement or restraint is inviolable may be open to different answers. I note that the requirements or restraints here, namely the lack of delegated authority to the decision-maker and the failure to satisfy cl 36 of the LEP, are not the same kind of restraints identified by Spigelman CJ in Anambah Homes. The delegate, Mr Butt had apparent or ostensible authority to issue the consent, and since the consent was one which the council itself could have issued, I am inclined to the view that his lack of a valid delegation was not inviolable: see Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568, Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206 and J R Hunt Real Estate Pty Ltd v Hornsby Shire Council (1997) 130 LGERA 45. In relation to cl 36 of the LEP, since that clause leaves to the council the question of whether it is satisfied that its provisions have been met, I am again inclined to the view that this discretionary consideration is not one which is inviolable in the relevant sense.
35 I conclude, therefore, that s 101 of the EP&A Act precludes any challenge to the validity of the first consent.