3 Aims, objectives etc
This Policy aims to amend the Principal Policy to make it clear that the term "industry" where used in environmental planning instruments does not include rural industries.
51 It may be accepted that the drafter of Amendment No 4 was not willing to concede the correctness or application of Egan and Elf Farm Supplies. However, I cannot accept that the stated aim of making something clear is enough to displace the principle stated by Dixon CJ in circumstances such as the present. Amendment No 4 alters legal rights and (according to the respondent) it does so retrospectively and significantly. Parliament may enact "declaratory" laws that have such effect and, arguably, so too can the Governor when making a SEPP (see par 53 below). But the words used in Amendment No 4 define the nature and extent of any "clarification" and its retroactive scope. They are not expressed with appropriate clarity to require interpretation as a declaratory enactment. The narrower interpretation of Amendment No 4 which I favour still conforms to the stated aims and objectives of cl 3 of SEPP No 30 and the language of the Amendment as a whole.
52 The principle stated by Dixon CJ is one of substance, not mere form. In my view it cannot be sidestepped in the present case by the respondent invoking the contestable label of "declaratory" as if that swept away the point of substance. That would be to engage in circular reasoning.
53 It is therefore unnecessary to do more than note the further problem raised by the Court during argument, namely the issue whether the generally expressed power conferred by s19 is sufficient to justify making a SEPP that displaces or alters vested rights (cf Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 593-5 per Katz J).
54 Senior counsel for the respondent submitted that the Consent could survive challenge merely because relief was sought after the making of Amendment No 4. It was suggested that this was consonant with an entirely prospective approach to the construction of Amendment No 4. There were passing references to the jurisprudential debate as to the meanings of invalidity and voidness in administrative law. The temptation to follow counsel down this winding trail can and should be resisted. The Consent purports to operate from its inception. If the use was prohibited at that time, there was no power to issue it. This Court can and should so declare.
55 Once determined to be invalid and so declared by a court the Consent will be treated as void ab initio (Hoffmann-La Roche & Co Ltd v Secretary of State for Trade and Industry [1975] AC 295 at 365; Forbes v New South Wales Trotting Club (1979) 143 CLR 242 at 277).
56 The discretionary matters raised in argument touching upon the Council's conduct in issuing the Consent which it now challenges and Mr Hagar's (disputed) conduct in consenting in advance cannot in my view rise to the point where the appellants should be denied this usual incident of success in challenging ultra vires action (cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2000) 99 FCR 251 at 267 per Lehane J). The public interest is served by such relief. The question of injunctive relief touching the continuation of the shed or the activities which the current owner wishes to conduct there raise separate discretionary issues which will have to be considered by the Land and Environment Court in light of this Court's reasons.
57 The respondent contended that the Council at least was estopped from challenging its own Consent on the basis of ultra vires. The judgment of Windeyer J in Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568 at 577 was invoked. Whatever that passage indicates, it does not represent a decision that an ultra vires act, indubitably established in fact, can never be challenged at the suit of the administrator who did it (see generally Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211-214 per Gummow J). In my view Stein J (as he then was) was correct to decide that the public interest in the carrying out of statutory duties requires that a Council is not estopped from asserting that a prohibited use to which it had previously granted conditional consent is invalid (Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127).
Disposition
58 The order made by Cowdroy J on the point of law should be set aside. In lieu, it should be ordered that the use authorised by the Consent is prohibited and that in consequence the Consent is declared void.
59 The order made by Talbot J dismissing the application should also be set aside. The proceedings should be remitted to the Land & Environment Court to be dealt with in accordance with the reasons of this Court. The parties agree that as yet unaddressed discretionary matters will be involved in the remaining (remedial) issues in the proceedings.
60 The setting aside of orders made by Talbot J, based in part as they are upon the earlier decision of Cowdroy J, will mean that any remaining issues in the proceedings can be addressed untrammelled by any question of res judicata or issue estoppel as regards the question of procedural fairness. Whatever was disclosed in the dealings between the parties that preceded the Consent it was not the intention to commence an "industry" on the site. It is unlikely that the resolution of the remedial phase of the proceedings will turn upon any of the issues litigated in the second phase of the proceedings before Talbot J, but (to the extent that it is otherwise) the judge hearing the proceedings would not be bound by the limited findings of Talbot J. (I say "limited", because there is uncertainty in my mind as to the extent to which Talbot J was reciting evidence concerning vital conversations with Mr Hagar and the extent to which findings were being made relevant to the many issues fought as to procedural fairness.) In these circumstances it is better for this Court not to address the issues raised by Mr Craig QC who argued the appeal for Mr Hagar.
61 The appellants seek costs, accepting that one set is all that is appropriate in the circumstances. (This was a condition of the grant of leave for separate representations.)
62 The respondent submits that the Council should pay all costs, including the respondent's costs on an indemnity basis, by parity of reasoning with will construction summonses. The Council is challenging the validity of its own Consent. The Council submits that costs should follow the event because the respondent rejected the Council's advice that the Consent was unlawful as far back as November 1999. Somewhat inconsistently, the Council also points out that any concession from the respondent is valueless given that the Consent enures for the benefit of third parties who are successors in title.
63 In my view the proceedings were necessary to resolve the status of the Consent. In the circumstances it is appropriate that the costs in this Court should be borne by the Council. The costs below should remain at the discretion of the Land and Environment Court, to be determined in light of the balance of the proceedings there.
64 I therefore propose the following orders:
1. The order made by Cowdroy J in Hawkesbury City Council v Sammut [2000] NSWLEC 270 on the point of law is set aside.
2. In lieu declare that the use authorised by the Consent granted to the respondent on 15 January 1999 is prohibited and that in consequence the Consent is void.
3. The order made by Talbot J in Hawkesbury City Council v Sammut (2000) 111 LGERA 208 dismissing the application is set aside.
4. The proceedings are remitted to the Land and Environment Court to be dealt with in accordance with the reasons of the Court of Appeal.
5. Costs of the appeal to be borne by the Council.
6. Costs of the proceedings in the Land and Environment Court to remain at the discretion of that Court.
65 POWELL JA: I agree with Mason P.
66 YOUNG CJ in Eq: Young CJ in Eq. I agree with Mason, P, but wish to add a few additional comments.
67 Had the question of construction of Amendment No 4 to SEPP 30 not made the questions otiose, it would have been necessary to consider some very significant questions of administrative law.
68 First, it must always be remembered that any amendment to the definition section of an Act or Statutory Instrument, actually amends each section of the Act or clause of the instrument where the relevant word or expression is employed. Such an amendment thus, unless plainly indicated, is almost always construed as operating prospectively only.
69 Secondly, as referred to in the judgment of Mason P, for the reasons given by Katz J in Rokobatini's case (1999) 90 FCR 583, 593-5, a Policy which operated in the retrospective manner as held by Cowdroy J may well be beyond power. The answer to this question so far as concerns a NSW instrument is assisted by s 39 of the Interpretation Act, 1987.
70 Thirdly, the question would have arisen as to whether there can ever by declaratory legislation which is declaratory with retrospective effect. A fortiori, can one have such legislation where there is no doubt about the construction of the measure concerned as the Supreme Court has already declared its true meaning?
71 As Bennion says in his "Statutory Interpretation" 3rd ed, (Butterworths, London 1997) p 542, "except when legislating, Parliament has no power authoritatively to interpret the law. That function belongs to the judiciary alone." The Governor and Executive Government are in no stronger position. I feel moved to make this statement in view of the creeping habit of government departments issuing press releases after losing a case to the effect that a court has not construed an enactment according to the intention of Parliament (with the implied assertion that the department had superior ability over the construction of statutes administered by it than the judiciary).
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