Hvalica v Wollongong City Council [2025] NSWLEC 119 | Case summary | Zoe

NSWNSWLEC

Hvalica v Wollongong City Council

[2025] NSWLEC 119

Land and Environment Court (NSW)|2025-10-20|Before: Pritchard J

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Court

Land and Environment Court (NSW)

Decision date

2025-10-20

Before

Pritchard J

Catchwords

HEARING ON SEPARATE QUESTION - Class 1 development appeal -
construction of cl 4.1A(3)(a)(i) of the Wollongong Local Environmental
Plan 2009
– whether the words "Zone C4 Environmental Living" are included –

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Catchwords

HEARING ON SEPARATE QUESTION - Class 1 development appeal -construction of cl 4.1A(3)(a)(i) of the Wollongong Local EnvironmentalPlan 2009– whether the words "Zone C4 Environmental Living" are included –whether the proposed development consentmay be granted

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Hvalica v Wollongong City Council [2025] NSWLEC 119

Hearing dates: 26 August 2025

Date of orders: 27 October 2025

Decision date: 20 October 2025

Jurisdiction: Class 1

As to the second condition, the applicants submitted that the Court could be satisfied that the drafter inadvertently overlooked an eventuality that must be dealt with if the clause is to achieve its purpose. The words “Zone C4 Environmental Living” must be implied in cl 4.1A(3)(a)(i) to avoid absurdity or “manifest contradiction of the apparent purpose of the provision”. The Court could be “well satisfied” that a mistake was made in the drafting of the clause. This was submitted to be apparent from the text of the clause itself, and also from the background as to its drafting through the planning proposal process. There was a documentary record available providing “clear insight” into the drafting process and how the mistake arose.
The mistake was submitted to readily emerge from the text of the clause. In subcl (2)(a), the clause was expressly stated to apply to land in Zone C4 Environmental Living. However, by reason of the mistake, the remainder of the provision would have the effect that the clause would have no application to land in Zone C4 Environmental Living, rendering the clause facially contradictory. The mistake was also obvious on the face of the clause by reason of the lack of symmetry between subcl (2) and subcl (3). It was apparent from the text that there “was to be a parallel symmetry between the zones referred to in subcl 2(a) and those referred to in subcl (3)(a)(i) on the one hand, and the zones referred to in subcl (2)(b) and subcl (3)(a)(ii) on the other”. The anomaly was the omission of Zone C4 Environmental Living from subcl (3)(a)(i).
The mistake was also submitted to have been made “abundantly clear” from the background to the drafting of the clause through the planning proposal process. The first step in that process was pursuant to a specific gateway condition requiring consultation between Council and the Department on the wording of the split zone subdivision clause, and resubmission for further concurrence before exhibition could occur. The Department made clear that the relevant clause was to be based on cl 4.1B of the Tamworth Regional Local Environmental Plan 2010 which was to be utilised as a template, while updating the zones to which it was to apply. In this template, the applicants submitted, there was a symmetry between the zones referred to in subcll 2(a) and (3)(a)(i) on the one hand, and subcll (2)(b) and (3)(a)(ii) on the other. The zones referred to in subcl 2(a) were to be mirrored in subcl 3(a)(i), and the zones referred to in subcl 2(b) to be mirrored in subcl 3(a)(ii).
The text of the revised clause set out in Mr Green’s email of 7 April 2011 included "Zone E4 Environmental Living" in both subcll 2(a) and 3(a)(i). This was maintained in all drafts exchanged between Council and the Department up to the formal resubmission for further concurrence under s 56(2)(b) of the EPA Act, as required by condition 1 of the Gateway Determination. It was also maintained in the formal resubmission required by condition 1 which occurred by way of Council’s letter of 2 September 2011 to the Department which set out the text of the clause that had been agreed. It was on the basis of this clause, the applicants submitted, that permission was sought and was given by the Deputy Director General to proceed. Following exhibition, it was also maintained in the text of the proposed clause set out in the report to Council on the basis of which on 23 August 2011, Council resolved that the planning proposal be submitted to the Department. It was only as part of the final formal drafting process involving the Parliamentary Counsel’s Office when Mr Hebbard (of the Parliamentary Counsel’s Office) sought to update the clause based on the latest version which contained “various cosmetic changes” to reflect the latest version of the provision in the Tamworth Regional Local Environmental Plan 2010, that Mr Hebbard inserted "Zone E4 Environmental Living" into the template in subcl 2(a), but mistakenly left it out of subcl 3(a)(i).
The applicants submitted that this step, at the very end of the process, was not a step concerned with matters of substance, but rather with drafting to give effect to the proposal made by the relevant planning authority. And in taking that step, it was clear from Mr Hebbard's covering email to the Parliamentary Counsel’s Office that he thought that his drafting "include[d] the additional zones referred to in the Council's letter of 13 April 2011" which was the formal resubmission in accordance with condition 1 of the Gateway Determination.

Referring to CIC at 408, McHugh J said at [124] "[t]his is the process required by the modern approach to the common law to statutory construction".
The liberality of the modern approach, was submitted to be confirmed in the two leading Australian texts on statutory interpretation – Herzfeld & Prince, Interpretation (3rd ed, 2024), (Herzfeld & Prince), and Pearce, Statutory Interpretation in Australia (10th ed, 2024) (Pearce). Pearce specifically refers to the passage from McHugh J’s decision in Stevens, and observes that “[i]t is the reference to ‘any material’ that has guided the courts”, and that the common law permits a more generous basis than the statutory provisions permitting use of extrinsic materials. [9] Herzfeld & Prince also refer to the width of the common law approach. [10]
Pearce comments that “at common law, reference may be had to any material that may throw light on the meaning that the enacting legislature intended to give to the provision”. [11]
The applicants also referred to Pearce’s reference to Sydney Seaplanes Pty Ltd v Page [12] (Sydney Seaplanes) where Bell P at [41] said that the common law has been held to authorise the use of extrinsic materials “even in circumstances where that use would not be permitted under the [Interpretation Act]”. Mr Shearer for the applicants referred to Esso Australia Resources Pty Ltd v Federal Commissioner of Taxation [13] (Esso) as an instance where regard was had to materials passing to and from parliamentary counsel as extrinsic materials. There was an issue in that case as to whether the primary judge had used extrinsic materials contrary to s 15AB of the Acts Interpretation Act 1901 (Cth). [14] Ultimately, the Full Court considered the totality of the extrinsic materials to confirm that which emerged from a consideration of the language of the Petroleum Resource Rent Tax Act 1987 (Cth) as a whole (at [108]-[112]). The extrinsic materials to which the Full Court had regard included explanatory memoranda, second reading speeches, draft bills, Commonwealth Government discussion papers, press releases, internal government correspondence and drafting instructions, although the Court held at [108] that “reference to the extraneous materials … [was] not necessary to make the Commissioner’s case”. The applicants submitted that the breadth of extrinsic materials to which regard has been had is otherwise confirmed by the examples given in Pearce at [3.32]. The kind of extrinsic materials relied upon by the applicants was the kind of material that can be taken into account in determining the validity of a local environmental plan following the gateway process. [15] Whether a local environmental plan is valid would be an aspect of knowing what the law is on the Council’s argument, and it would be incongruous if such material could be taken into account to determine validity, but not interpretation.
In considering the type of extrinsic materials that may assist, the applicants submitted that regard must be had to the statutory regime under which the instrument is made. Here, that is Part 3, Div 4 of the EPA Act (as it previously stood) which outlines distinct steps. It would be odd, it was submitted, if material arising from that statutory process, particular to the making of local environmental plans, were to be disregarded notwithstanding the accepted purposive approach to interpretation.
In relation to the question of accessibility of the extrinsic materials upon which they sought to rely, the applicants submitted that the proceedings of Council are generally required to be conducted in an open forum, following public notice of meetings, with everyone entitled to attend: ss 9, 10 of the Local Government Act 1993 (NSW) (LG Act). There is a right of reasonable access to any person to inspect correspondence and reports laid on the table at, or submitted to, a meeting: s 11 of the LG Act. There are also rights of access to materials provided under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). Pursuant to s 4 of that Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to that information in accordance with Part 4, unless there is an overriding public interest against disclosure of the information.
The applicants also referred to Council’s reliance on various decisions from the United Kingdom in support of its accessibility contention, [16] and noted that Council did not refer to any Australian authority holding that extrinsic materials are not admissible as such unless “accessible” in some form. In this regard, there were submitted to be apparent divergences in the approach in the United Kingdom and Australia to the use of extrinsic materials, one aspect of which was adverted to in Application by Energex Limited (No 4) [17] at [14]-[15] (Finkelstein J and Messrs Shogren & Davey).
Significantly, the applicants referred to the following discussion in Pearce at [3.34] in relation to the accessibility of materials: “[i]f the issue of accessibility is of significance in the application of the statutory provisions relating to use of extrinsic materials, it does not appear to be relevant if the common law is being invoked”. The applicants also submitted that Herzfeld & Prince likewise did not advert to any “accessibility requirement”. Nor, the applicants submitted, did the other Australian cases relied on by Council support the existence of an “accessibility requirement”:
The passage referred to in the decision of Gaudron J in Corporate Affairs Commission (NSW) v Yuill [18] at 340 concerned the primacy of legislative text (that ordinarily “the words of the statute should be taken to bear their natural and ordinary meaning”), pre-dated the modern approach signalled by CIC, and was not concerned with limitations as to the types of extrinsic materials that may be received.
The passage referred to in the decision of Heydon J in PGA v The Queen [19] at [138] concerned the fact that most who engage in serious crimes probably do not care what the law is, but that “people should be able to know, by recourse to a competent lawyer, what the legal consequences of a proposed course of action are before embarking on it”. That passage, it was submitted, has nothing to do with the present point concerning an “accessibility requirement”.
The passage referred to in the decision of Edelman J in Harvey v Minister for Primary Industry and Resources [20] (Harvey), at [106] was part of a consideration of the common law and the importance of context which commenced with the observation that “[a]n attempt to understand the meaning of speech without any context is like an attempt to understand the meaning of a painting before the paint is applied to the canvas. Context conveys meaning”. It too has nothing to do with the present point concerning an “accessibility requirement”.
Likewise, the decision of Cripps J in Saggers v the Sydney Market Authority [21] (Saggers) pre-dated CIC and the modern approach it presaged. In any event, in that case the document that was sought to be tendered was rejected because it was sought to be used as evidence of subjective intention.
There was, the applicants submitted, no basis for an a priori rule excluding all such extrinsic materials. The question was ultimately one of relevance and the degree of weight that the Court might place on the material. Whilst the applicants’ case did not depend on extrinsic materials, the extrinsic materials “very strongly” supported their case that the mistake was “manifest on the face of the document”.

Council made a number of general and uncontroversial submissions in relation to zoning as the primary means by which planning laws express their field of operation, and submitted that this is achieved by specifying particular zones by terminology which is intrinsic to the planning instrument and its adopted maps. [22] Council submitted that zoning combinations can be expressed using the classes of land use zones in cl 2.1 of the LEP, including “Residential zones", "Employment zones" etc, or by reference to zoning nomenclature, for example, RU2 Rural Landscape, or by describing a residue of land with innominate zones. Clause 4.1A of the WLEP was submitted to do all three things: by nominating the zones to which it applies, describing the zones which are to benefit from its “concession”, and by leaving a residue of land in innominate zones which do not enjoy the benefit of the concession for undersized subdivision.
Subclauses (2) and (3) were submitted to have different purposes, and there was “no reason why they should not operate differently according to those purposes”. The purpose of subcl (2) is to describe land (the original lot) which has a mixture of zoning of a particular kind to which the concession in cl 4.1A may apply. In subcl (2), para (a) describes zones in which residential, business or industrial purposes are both objectives and permissible uses. The original lot must also contain land in a rural zone or land in two of the four conservation zones, Zone C2 Environmental Conservation or Zone C3 Environmental Management. That was submitted to describe an area of land with both urban and rural or conservation characters.
The “concession” for undersized subdivision, it was submitted, will then apply if it meets the conditions in subcl (3) which considers two cases:
First, a lot which need not comply with the minimum size requirement (the resulting lot) must have urban land of an area not less than the minimum size shown on the Lot Size Map, as well as all of the land must be in a rural zone and in the C2 or C3 zones. This was submitted to enable subdivision to yield an undersized lot which consolidates rural and certain conservation zones if it also contains “properly sized” residential, business or industrial zoned land.
Second, the residue of the original lot must not comprise land in a rural zone or in the C2 or C3 zones, and must comply with the minimum size requirement for the particular innominate zones that fall within it. Among those, Council submitted, is the Zone C4 Environmental Living. If any one of the innominate zones comprises areas below the minimum size, the minimum subdivision lot size development standard in cl 4.1 does not apply. Accordingly, the C4 zone is treated in the same way as zones, other than the rural or C2 and C3 zones which must be part of the undersized lot and are governed by subcl (3)(a) of cl 4.1A.
There was, Council submitted, nothing irrational about this consequence, subcl (2) of cl 4.1A making it clear that the original lot may comprise land in the C4 zone. As with other zones in the residue lot, the C4 zoned land must comply with the minimum lot size requirement.
Council submitted that nothing on the face of the WLEP bespeaks mistake or error. On the contrary, that the land within the residue lot is likely to pick up the urban zones where residential living is an objective ensures that the C4 zone is bracketed with them in accordance with its objective to provide for low-impact residential development. This was to be compared with the objectives of zones C2 and C3 which do not mention residential purposes, even though dwelling houses are permissible in the Zone C3 Environmental Management.
This was not a case, Council submitted, of “garbled text stemming from a typographical or grammatical error which may be corrected to remove an absurdity or where it is necessary to avoid defeating the object of the provision”. In such a case, the error must be clearly apparent. [23] Nor, Council submitted, were the applicants assisted by purposive construction. Clause 4.1A states its objectives in subcl (1), which objectives are both generic and anodyne, and “do not improve the argument for mistaken omission”.
In relation to the applicants’ argument that there should be symmetry between subcll (2) and (3) of cl 4.1A as the reference to Zone C4 Environmental Living in subcl (2)(a) in conjunction with “land in a residential, business or industrial zone” must be reflected in subcl (3)(a)(i) because those words also occur in that provision, Council submitted that the purpose of subcl (2) is to describe the zones which must be contained in the parent lot, and that it has no further operative effect. How those zones are distributed as between the resulting lot and the residue lot is the subject matter of subcl (3). This may reflect a decision by the maker of the plan that what is almost exclusively a residential zone (excepting aquaculture), but with special ecological, scientific or aesthetic values, should not be permitted to “bleed into other zones which might diffuse those values”.
Further, Council submitted, under the EPA Act extant at the time, Council was the planning authority, not the maker of the LEP. There was no extrinsic evidence that the plan maker, the Minister under s 59 of the EPA Act, intended any different result from that achieved by the clause. The drafting was to be arranged by the Director-General of Planning (s 59(1)), but subject to consultation with Council. That consultation occurred after Parliamentary Counsel had amended subcl 4.1A(a)(i) to exclude specific reference to Zone E4 Environmental Living. Council’s attention was drawn to the zonings referred to in the draft clause “please check that the correct zone references are proposed in draft cl. 4.1B”. The extrinsic evidence, such as it is, revealed an intention to make the instrument in the form in which it appeared. Where an instrument is amended during its drafting, Council submitted, extrinsic materials relating to its original form are irrelevant. [24] That other LEPs had similar provisions without a comparable omission suggested that the omission was deliberate. [25] Further, the provision has been amended since it was made in 2012 to add reference to a waterfront zone. Despite that amendment, the so-called error was not corrected, telling against an implication of error.
To the extent that the applicants placed reliance upon extrinsic materials, Council submitted that several principles were relevant. First, extrinsic materials cannot displace the meaning of the text: [26]

Second, the general principles relating to the interpretation of primary legislation are equally applicable to subordinate legislation. [27] Third, as the majority (Kiefel CJ, Gageler, Gleeson and Jagot JJ) held in Disorganized Developments at [14], the task of construction “involves attributing legal meaning to the legislative text, read in context: expounding the meaning of the text and not seeking to remedy perceived legislative inattention”. Fourth, although a purposive construction that best achieves the object of the instrument is to be preferred, and purposes may be considered in determining whether there is more than one possible construction, the court may not rewrite legislation in the light of its purposes. Again, as held by the plurality in D**isorganized Developments at [15]: “Any meaning must be consistent with the language in fact used in the relevant legislation”. Disorganized Developments was submitted to be an example of where the purpose of the legislation was clear, but there was no ambiguity in the text. [28] Here, there was no ambiguity in the text of cl 4.1A, and no justification for applying a purposive construction to defeat the meaning of the text.
A further problem was submitted to be the nature of the extrinsic evidence relied upon by the applicants. To the extent that it comprises subjective opinion about what was or may have been intended, it must be ignored. Interpretation of instruments is not concerned with what the maker subjectively intended or wanted to convey, but with what a reasonable reader would understand the words used, considered in their particular context, to mean. [29] In construing instruments, contextual material should be available to a member of the public, as the reasonable reader cannot be expected to have regard to private documents, such as correspondence passing between the parties. [30]
In relation to the applicants’ reliance on Taylor “to justify rewriting the provision”, Council submitted that in Taylor the Court disapproved the statement in Leys (upon which the applicants relied) that it is sufficient if the modified construction was reasonably open having regard to the statutory scheme “because any modified meaning must be consistent with the language in fact used by the legislature”: Taylor at [39]. Unlike the Victorian Court of Appeal in Ley**s, the High Court in Taylor distinguished between a simple, grammatical drafting error which, if uncorrected, would defeat the object of the provision, and a construction that filled gaps disclosed in legislation or that made an insertion which was “too big, or too much at variance with the language in fact used by the legislature”. [31]
Further, Council submitted, neither Esso nor Stevens established the proposition that “extrinsic materials used in the construction of statutory provisions need not be accessible to the public”. As Gleeson CJ and Kirby J observed in Ostrowski v Palmer [32] at [2], the corollary of the rule that ignorance of the law is no excuse is that “information as to the content of the law should be readily accessible”. Without access to non-public extrinsic materials relied on to prove that words were omitted in error, a member of the public could have had “no inkling that the provision which expressly said that it applied to land in zones A, B and C also applied to land in zone D.” In Black-Clawson International Ltd v Papierwerke Wahldhof-Anschaffenburg AG [33] (Black-Clawson) at 614, 629 and 638 the House of Lords opened the way to consider extrinsic materials in applying the mischief rule. Lord Reid, after referring to the contextual principle of interpretation and the need to take into account relevant facts known to the maker of a document when the document was made, said at 614A-B (emphasis added):

As noted by Payne JA in McIntosh v Lennon at [100], Lord Nicholls’ formulation in Inco was also considered by the Court of Appeal in NSW in Coal & Allied Operations Pty Ltd v Crossley [44] (Coal & Allied Operations). There, Leeming JA at [43] (Stern JA and Simpson AJA agreeing) confirmed that "[c]ourts are empowered to correct obvious drafting errors in all legal documents, including primary and delegated legislation". Leeming JA at [44] referred to Director of Public Prosecutions for Nauru v Fowler [45] (Nauru v Fowler) at 630 where the High Court (Gibbs CJ, Murphy, Wilson, Deane, Dawson JJ) said that it was apparent that a simple grammatical mistake had been made in drafting, and that “if the strict grammatical sense of the words is adhered to it would lead to an absurdity”. In those circumstances, “the court is entitled to attribute to the provision the meaning which it was obviously intended to have”. Whilst in the case before the court in Nauru v Fowler, it was possible to give a literal meaning to the text of the statutory provision at issue (see at [56]), Leeming JA observed that it was a case where the three conditions identified by Lord Nicholls were not sufficient (at [57]). Leeming JA concluded that the power was "available in the present class of case if three conditions are satisfied, namely: (a) the court is certain there has been an inadvertent drafting error, (b) the court is well satisfied of what the intended wording was, and (c) if the words as made are read literally, they will be absurd and irrational and irreconcilable to the purpose of the instrument". His Honour referred to the common-sense reality that ''[n]o matter how skilled the author, legal texts will always contain mistakes, a proposition familiar to any author, any judge and (I infer) any Parliamentary Counsel" (at [60]). There had been an obvious mistake and "$36" should be read as "$3".
Before turning to consider whether the words sought to be included by the applicants in cl 4.1A of the WLEP meet Lord Diplock’s three conditions, as reformulated in Inco and approved in Taylor, as well as the fourth “consistency” condition contemplated by the authorities, it arises first to consider whether the extrinsic materials upon which the applicants rely in contending error in the drafting of cl 4.1A of the WLEP are “admissible” (in the language of Council), or differently expressed, what weight, if any, ought be attached to them in the construction of cl 4.1A.
I do not accept the applicants’ submission that the mistake or error alleged here arises “irrefutably from the face of the provision”, that is, cl 4.1A. There is nothing on the face of cl 4.1A that suggests an error, irrefutable or otherwise. The clause is capable of being construed as Council submitted, such that subcl (2) describes the zones which must be contained in the parent lot, and subcl (3) specifies how those zones are distributed as between the resulting lot and the residue lot. Contrary to the applicants’ submissions, I am unable to conclude that the alleged mistake or error was “manifest on the face of the document”, or that the extrinsic materials sought to be relied on by the applicants “very strongly” support their case that the mistake was manifest of the face of the document. I do not consider anything on the face of cl 4.1A to bespeak mistake or error. This is plainly not a case of garbled or obscure text resulting from a typographical or grammatical error. Nor do the objectives of cl 4.1A stated in subcl 4.1A(1) assist the applicants’ contention in relation to mistake or error. The “error” or “mistake” sought to be remedied by the applicants here goes beyond a simple, grammatical drafting error which, if uncorrected, would defeat the object of cl 4.1A. Rather, it seeks to make an assertion that is “too big, or too much at variance with the language in fact used by the legislature”: Taylor at [38].
As to the “extrinsic materials” sought to be relied on by the applicants in the interpretation of cl 4.1A(3)(a)(i), it is plain that the materials sought to be relied on do not fall within the non-exhaustive list of the material enumerated in s 34(2) of the Interpretation Act 1987 (NSW), which may be considered in the interpretation of a provision or a statutory rule made under the Act. All the material listed in s 34(1) is material which forms part of the public record and is available to the public.
It then arises to consider whether the materials are capable of assisting in the ascertainment of the meaning of the provision so as to fall within s 34(1)(a) or (b) of the Interpretation Act or is otherwise material the use of which is authorised by the common law.
As to s 34(1)(a) and (b) of the Interpretation A**ct, I do not consider cl 4.1A(3)(a)(i) to be ambiguous or obscure. I find, as appears to have been accepted by the parties, that the literal meaning of cl 4.1A(3)(a)(i) is tolerably clear. Nor do I consider that the ordinary meaning conveyed by the text of cl 4.1A(3)(a)(i), taking into account its context in the WLEP and the purpose or object underlying the WLEP, leads to a result that is manifestly absurd or unreasonable. As previously noted, an available construction of cl 4.1A as a whole, is that subcl (2) describes the zones which must be contained in the parent lot and subcl (3) specifies how those zones are distributed between the resulting lot and the residue lot. As Council submitted, the clause may be read as reflecting a decision of the maker of the plan that what is almost exclusively a residential zone, with the exception of land zoned W4 Working Waterfront [46] , but with special ecological values [47] , should not be permitted to seep into other zones, which might disperse or dissipate those values.
It then arises to consider whether the Court would have recourse to the extrinsic materials having regard to the common law position, deriving from the High Court’s decision in CIC. It is to be accepted that the common law permits a more generous basis for using extrinsic materials than the statutory provisions permitting use of extrinsic materials: Pearce at [3.25]-[3.26]; also Herzfeld & Prince at [8.30]; Sydney Seaplanes at [41] (Bell P). However, as Council submitted, it was the Minister and not Council (the planning authority) who made the local environmental plan pursuant to s 59 of the EPA Act as it stood in 2011. There was, as Council submitted, no extrinsic material capable of suggesting that the Minister acting under s 59 intended any result other than that achieved by cl 4.1A. The EPA Act, as it then applied, provided for the Director-General to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority, and to consult with the planning authority on the terms of any draft instrument: s 59(1). Here, consultation occurred when Mr Towers of the Department forwarded to Mr Green of Council the draft of the Parliamentary Counsel’s Office which was eventually published and was in the form which did not include in subcl 4.1A(3)(a)(1) a reference to Zone C4 Environmental Living. In Mr Towers’ email of 31 October 2011, Mr Green’s attention was directed to the zonings referred to in the draft clause, and he was asked to “[p]lease check the correct zone references” were proposed in the draft. On 16 November 2011, Mr Green replied to Mr Towers “I think it is OK.” Nothing in any of this suggests that Parliamentary Counsel’s Office intended to draft anything other than the language which appeared eventually in cl 4.1A as made, or is capable of throwing light on the meaning that the Minister intended to give to the provision. [48]
The communications between Mr Green of Council and Mr Towers of the Department, and with the Parliamentary Counsel’s Office do not fall within the examples of extrinsic materials given by Pearce at [3.31]-[3.32] which include Parliamentary debates, Ministerial statements, Parliamentary committee reports, departmental information papers, Ministerial communiques, government legal advice and drafting instructions, draft Bills and commentary, explanatory memoranda for other Bills, reports on statutory review of legislation, budget papers, government position papers, Departmental information papers, Ministerial communiques, government legal advice, drafting instructions, Law Reform Committee reports, reports of government expert bodies, reports of specialist bodies and government response, reports of international bodies, similar legislation, and drafting guidelines and manuals. Nor are they comprehended within the breadth of extrinsic materials referred to by the Full Court in Esso at [108]-[112] where the admissibility of extrinsic materials was not an issue before the Court, but upon which the applicants placed particular weight.
To the extent it might be suggested that Mr Green’s communications with Mr Towers are capable of meeting the description of “drafting instructions” (Pearce at [3.32]). I do not accept that they can be so characterised. At best, that correspondence constitutes subjective opinion on the part of Mr Green as to what may have been intended, not the notional intention of the Minister in making the amending LEP and what a reasonable reader would understand the words used, in context, to mean. And Mr Green’s correspondence to the applicants’ town planner some 13 years after the amending LEP commenced stating that “it would appear that we intended for E4 (now C4) to be listed in both parts of the clause” and that “[w]e missed its absence in the LEP amendment checking process and the Amendment was notified without it” cannot bear on the construction of cl 4.1A as at the time it was made. As the majority held in Disorganized Developments at [14], the task of construction “involves attributing legal meaning to the legislative text, read in context: expounding the meaning of the text and not seeking to remedy perceived legislative inattention.” Construction is not speculation, and is not repair: Taylor at [66] per French CJ, Crennan and Bell JJ. And as Payne JA observed in McIntosh v Lennon at [1000], the effect of Taylor appears to be to discourage some of the judicial readiness to read words into statutes. In the present case, there is nothing evincing a purpose of the maker of the amending LEP which is manifest, nor is the error in drafting plain and contrary to the legislative purpose; cf Leys at [110].
Here, the applicants attached significance to the approach of the Victorian Court of Appeal in Leys in reading into the clause there under consideration words to reflect the “same symmetry” as the other clauses which concerned offences which occurred partly before and partly after the provisions which repealed the “old” combined custody and treatment orders, intensive correction orders and community-based orders came into force (at [122]). For the reasons given, I do not consider there to be any sufficient expression of clear intent of the maker of cl 4.1A, or of context, which would lead to the conclusion that applying a literal meaning would stultify the intent of the clause and justify the Court in abandoning its literal meaning.
It is undoubtedly correct, as submitted by the applicants in support of their accessibility contention, that the proceedings of Council are required to be conducted in an open forum, following notice to the public, and that there is a right of reasonable access to any person to inspect correspondence and reports laid on the table at, or submitted to a meeting: ss 9, 10 and 11 of the LG Act. Likewise, there are also rights of public access to materials under the GIPA Act. However, the principal, in my view insurmountable, difficulty for the applicants in their accessibility argument is that the correspondence which passed between Mr Green and Mr Towers in relation to the amending LEP was not material which was readily available to the public at the time the amending LEP was made in 2011. As Lord Reid said in Black-Clawson at 614A-B, “it would seem wrong to take into account anything that was not public knowledge at the time”. And as Lord Diplock said at 638 in relation to the justification of the use of statements made in official reports commissioned by government as an aid to the construction of the words used in a statute, “knowledge of other contexts may be taken to be shared by those whose conduct the statute regulates and would influence their understanding of the meaning of ambiguous enacting rewords.” Here, as I have found, there is no relevant ambiguity in the language of cl 4.1A, nor can the correspondence between Mr Green and Mr Towers be described as having been a matter of public knowledge, available to the public at large, or in the public domain, at the time the amending LEP was made.
For the foregoing reasons I have determined that no weight can be attached to the extrinsic materials sought to be relied on by the applicants in the construction of cl 4.1A of the WLEP.
Turning then to the first of Lord Diplock’s conditions, as reformulated in Inco and approved in Taylor, namely, the identification of the precise purpose of the provision, it might be accepted, as the applicants submitted, that the purpose of cl 4.1A is to provide for the subdivision of lots that are within more than one zone, but cannot be subdivided under cl 4.1, and to ensure that the subdivision occurs in a manner that promotes suitable land uses and development (subcl (1)) in respect of land to which the clause is stated to ally (subcl (2)). However, I do not derive from the text of cl 4.1A read, as a whole, in context or purposively, any purpose such as that suggested by the applicants that a purpose was the inclusion of the C4 Environmental Living Zone in subcl 4.1A(3)(a)(i) to address the “hard strictures” in cl 4.1.
As to the second condition, namely, satisfaction that the drafter and the parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose, I have, for the reasons given, not attached any weight to the so-called extrinsic materials upon which the applicants sought to rely. Nor have I found that the ordinary meaning conveyed by the text of cl 4.1A(3)(a)(i), taking into account its context in the WLEP and the purpose or object underlying the WLEP, leads to a result that is manifestly absurd or unreasonable. I am unable to conclude that the second of Lord Diplock’s conditions, reformulated in Inco, is satisfied.
As to the third condition, namely, identification of the words that the legislature would have included in the provision had the deficiency been detected before its drafting, given by conclusions in relation to the first and second conclusions, I am unable to be satisfied that the language proposed by the applicants is that which the plan maker would have adopted if the “mistake” or “error” had been drawn to their attention.
And as to the consistency condition, although in light of my conclusions in relation to the first three conditions it not be necessary to decide, I would find that no inconsistency would be created by the words sought to be included by the applicants.
And as to the additional matters which Payne JA in McIntosh v Lennon suggested at [157] that the authorities may require, I find that the implication would be too big or too much at variance with the language in fact used: Taylor at [32] quoting Inco at 592; and whilst the modified construction would not be unnatural, incongruous or unreasonable for the reasons given (Leys at [97], and [109]-[110]), for the reasons given, it is not a construction available having regard to general principles of statutory interpretation and the requirements for reading words into a statute, explained by Taylor.

Hvalica v Wollongong City Council

At a glance

Court

Decision date

Before

Catchwords

Source

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Catchwords

Judgment

JUDGMENT

Introduction

Background

Drafting history of clauses 4.1 and 4.1A of the WLEP

Relevant legislative provisions

Applicants’ submissions in relation to the separate questions

Identification of the purpose of the provision

Satisfaction that the drafter (and the Parliament) inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose

Identification of the words the legislature would have included in the provision had the deficiency been detected before its drafting

Consistency

Council’s submissions in relation to the separate questions

Considerations and conclusions

General principles of statutory construction

The requirements for reading words into a statute

Conclusion

Decision

Question

Answer

Question

Answer

Addendum made on 27 October 2025

Endnotes

Amendments

27 October 2025

Parties

Legislation Cited (9)

Cases Cited (35)