Lithgow City Council v Newera Defendo Pty Ltd - [2019] NSWLEC 188 - NSWLEC 2019 case summary — Zoe

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Lithgow City Council v Newera Defendo Pty Ltd

[2019] NSWLEC 188

Land and Environment Court (NSW)|2019-11-12|Before: Moore J, Ms J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-11-12

Before

Moore J, Ms J

Catchwords

[1997] HCA 2 Cooper-Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
[1981] HCA 26 Kirk v Industrial Relations Commission
Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs)(2010) 239 CLR 531
[2010] HCA 1 Latoudis v Casey (1990) 170 CLR 534

Source

Original judgment source is linked above.

Catchwords

[1997] HCA 2 Cooper-Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297[1981] HCA 26 Kirk v Industrial Relations CommissionKirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs)(2010) 239 CLR 531[2010] HCA 1 Latoudis v Casey (1990) 170 CLR 534[1990] HCA 59 Project Blue Sky v ABA (1998) 194 CLR 355[1998] HCA 28 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531[2014] HCA 9 Trives v Hornsby (2015) 89 NSWLR 268

Judgment (21 paragraphs)

[1]

TABLE OF CONTENTS Introduction The Summons commencing the proceedings Representation The relevant environmental planning instruments Introduction The LEP The Exempt and Complying Development SEPP The Infrastructure SEPP Commencement of the proceedings Legislative history matters The mutual undertakings The framework for determination of the matters in contention The first Complying Development Certificate The contested meaning of the critical words The second Complying Development Certificate The Company's submissions The Company's submissions The Council's submissions in reply Construing the contested phrase Costs Orders

[8]

The Infrastructure SEPP

Like the Exempt and Complying Development SEPP, the Infrastructure SEPP is also to be characterised as being a beneficial and facultative environmental planning instrument. This can be seen from the terms of cl 8(1), a provision in the following terms: 8 Relationship to other environmental planning instruments Note. This clause is subject to section 3.28(4) of the Act. (1) Except as provided by subclause (2) [not here relevant], if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
It is to be observed that s 3.28(4) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) plays no role in these proceedings.
The Infrastructure SEPP operates on a statewide basis (this being given effect by cl 4 of the SEPP).
A number of provisions of the SEPP are engaged for my consideration, either directly or for indirect comparative purposes.
The construction of one particular provision is in contest in these proceedings. This provision is, relevantly, in the following terms: 20B General requirements for complying development (1) This clause applies to any development that this Policy provides is complying development. (2) To be complying development, the development must - (a) not be exempt development under this Policy, and (b) be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out, and (c) …, and (c1) …, and (d) …, and (e) …, and (f) …, and (g) …, and (h) …. 1. It is also appropriate to note one element of the structure of this instrument that has particular relevance to the solar voltaic array, the erection of which has given rise to these proceedings. 2. The provisions of the above set out cl 20B(2)(b) are contained in Div 5 of Pt 2 of the Infrastructure SEPP. Division 4, Pt 3 of the Infrastructure SEPP deals with Electricity generating works or solar energy systems. It is within this Division that the development installed by the Company would, conventionally, fall. There are six provisions in this Division, dividing up types of development of this nature into different categories. These clauses are: 34 Development permitted with consent; 35 Other development permitted with consent where electricity generating works permitted; 35 Development permitted without consent; 37 Complying development; 38 Prohibited development; and 39 Exempt development.
Of this group of provisions, cl 35 warrants noting as it is a significant element invoked by Ms Walker in her submissions on behalf of the Council. It is in the following terms: 35 Other development permitted with consent where electricity generating works permitted If, under any environmental planning instrument (including this Policy), development for the purpose of coal-fired or gas-fired electricity generating works may be carried out on land with consent, development for the purpose of industry may also be carried out by any person with consent on that land if the industry - a) is located close to the works, and b) provides opportunities for energy efficiency or co-generation in the operation of the works.
Although Ms Walker and Mr Nash also cite other provisions of the Infrastructure SEPP, as later discussed, it is not necessary to set out the terms of those provisions.

[9]

Commencement of the proceedings

At least on a contingent basis, the Council sought leave to commence these proceedings. That leave was sought on the basis that these judicial review proceedings had not been commenced within the general three-month window permitted by s 4.59 of the EP&A Act for such commencement. Although prudent, perhaps, to have sought such leave, granting of leave was unnecessary in circumstances where the challenge was based on an asserted lack of jurisdiction to make the decision sought to be impugned.
In Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) [2019] NSWLEC 171, a decision of Pain J delivered on 7 November 2019, her Honour explained why, after the High Court's decision in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 (Kirk), a provision such as s 4.59 (here relevant) does not preclude judicial review of the full range of potential jurisdictional errors.
In doing so, she cited the decision of Preston CJ in Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172. In Brown, his Honour said, at [39]: 39 After the High Court's decision in Kirk , the full range of jurisdictional error remains subject to judicial review, notwithstanding a privative clause. A privative clause in State legislation cannot validly compromise the capacity of a State Supreme Court to exercise its supervisory jurisdiction (which is constitutionally entrenched) for review for jurisdictional error. The supervisory jurisdiction of the State of New South Wales' Supreme Court is divided between the Supreme Court and the Land and Environment Court, depending on the statute under which powers and functions have been exercised and are subject to review. A privative clause, such as s 101, may remain valid but it will be read down so as to preserve the supervisory jurisdiction to review for jurisdictional error.
It follows that the application of Kirk provides a proper basis for not needing to grant the Council any extension of time in these circumstances.

[14]

The contested meaning of the critical words

I have earlier set out the relevant elements of cl 20B of the Infrastructure SEPP. That with which I must engage, for the purposes of determining whether or not the CDC issued under this instrument is valid or not, is, as previously noted, contained in cl 20B(2)(b) of this instrument. It is appropriate to repeat the wording of this element of cl 20B, with added emphasis highlighting the narrow element of the provision, the correct interpretation of which is now the sole element in dispute between the parties. The relevant elements of this provision are in the following terms (emphasis added): 20B General requirements for complying development (1) This clause applies to any development that this Policy provides is complying development. (2) To be complying development, the development must - (a) not be exempt development under this Policy, and (b) be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out, and (c) …, and (c1) …, and (d) …, and (e) …, and (f) …, and (g) …, and (h) ….
The competition between the parties concerning the approach to be taken to the above provision is a simple one.
For the Council, Ms Walker advances the proposition that the provision should be read as if the words (other than this policy) appear after the word "instrument".
For the Company, on the other hand, Mr Nash submits that the provision should be given its ordinary meaning, this meaning being an inclusive one bringing within the operation of the provision the development undertaken by the Company pursuant to the second CDC, being development rendered permissible by the operation of the Infrastructure SEPP (this being, in itself, an environmental planning instrument).
Although argued by Ms Walker as if a matter of considerable complexity, I am satisfied that this is not the case and that the position advanced by Mr Nash is undoubtedly correct on a proper contextual analysis of the instrument itself. I set out below why I have reached this conclusion.

[15]

The Company's submissions

Ms Walker initially made three main submissions regarding the validity of the second CDC:

first, that the development was not complying development under the Infrastructure SEPP;
second, that the current matter should be distinguished from the Court of Appeal decision in Trives v Hornsby (2015) 89 NSWLR 268; [2015] NSWCA 158 (Trives v Hornsby); and
third, even if the Court agreed with the Council's construction of cl 20B(2)(b) based on Trives v Hornsby, the decision to reissue the second CDC was manifestly unreasonable.

During the course of Ms Walker's oral submissions, the parties accepted that Trives v Hornsby did not arise to be distinguished in the current matter and further submissions were not needed on this point. As a consequence, I do not need to address further Ms Walker's submissions on this and confine myself to the first of Ms Walker's submissions.
To support her submissions that the development was not compliant with the Infrastructure SEPP, Ms Walker referred to a number of clauses within the SEPP that went to whether development was complying development or not, this included cl 20B, which has already been set out elsewhere in the judgment, cl 34 Development permitted with consent (in written submissions incorrectly labelled as 33), subcll 7 and 8 and cl 37 Complying Development subcll 2(a) and 2(c). It is unnecessary for me to set out the elements of cl 34 and cl 37, Ms Walker accepts that the Development is a solar energy system which satisfies the requirements of cl 34(8) and cl 37(2)(c) (Written submissions page 7, para [25]).
Ms Walker submitted that the correct and confined issue is whether cl 20B(2)(b) is satisfied. Ms Walker submitted that although, on one view, the Infrastructure SEPP is an environmental planning instrument and therefore makes the Company's development permissible with consent, another, preferable reading of cl 20B is that the expression "an environmental planning instrument applying to the land" should read "an environmental planning instrument (other than this policy)", which would mean the development was not permissible as complying development but could only take place with consent from the Council. This was the construction she favoured and proposed should be adopted (Written submissions page 7, paras [25]-[27]).
Ms Walker cited s 33 of the Interpretation Act 1978, submitting the Court is required to prefer a construction that promotes the purpose or object underlying the instrument (Written submissions page 8, para 28). Ms Walker also noted the related statutory interpretation principle that statutory provisions must be read in context (citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 - written submissions page 8, para [29]).
To support her submission that the underlying purpose of the Infrastructure SEPP would align with the construction she advanced, Ms Walker went to various other divisions in Part 3 of the Infrastructure SEPP to demonstrate, on her analysis, a general rule of the Part that most types of development which were complying under Part 3 of this SEPP were also permissible with consent by virtue of that same part (Written submissions page 8, paras 31-32). Ms Walker submitted that this pattern indicated that it was more likely cl 20B(2)(b) was intended to impose a broadly applicable constraint of requiring complying development to be permissible under another instrument, rather than requiring permissibility under the Infrastructure SEPP itself (Written submissions page 9, para [33]).
Finally, on this issue, Ms Walker submitted that in context, cl 20B(2)(b) had no single, obvious meaning and therefore her favoured construction, that being one which a development must first be permissible under an EPI other than the Infrastructure SEPP, should be adopted by the Court (Written submissions page 11, para [39]).

[16]

The Company's submissions

Mr Nash detailed his submissions on the second CDC at various points throughout his written submissions. He first provided a summary of the Company's position on pages 3 and 4, paras [6] - [10]. The general position set out by this material is that, if the original CDC was not validly issued, the Infrastructure SEPP was an available source of power for the issue of the second CDC.
Mr Nash submitted his construction, that "an environmental planning instrument applying to the land" includes the Infrastructure SEPP itself, is correct, as it follows from a plain, natural and literal reading of cl 20B (Written Submissions page 12, para [44]).
Mr Nash further submitted that there was no ambiguity in the plain text of cl 20B(2)(b) that mandated extraneous material to inform its interpretation, as necessary for the Council's construction (Written submissions page 12, para [45]). He submitted that under cl 34(8) of the Infrastructure SEPP, the proposal was permissible with development consent under that SEPP (Written submissions page 12, para [46]-[47]).
Mr Nash rejected the Council's submission, as he puts it, that generally every category of development which is complying under any division of Part 3 of the Infrastructure SEPP is already permissible with consent under the same division, and therefore there would be little work for cl 20B(2) to do if his construction was correct.
Mr Nash gave the example of cl 130, Complying development - connections to Sydney and Hunter water supply and sewerage, of Division 26 of the Infrastructure SEPP to demonstrate his argument on this point. A requirement to achieving complying development status under this clause includes compliance with cl 20B (Written submissions, page 12 to page 13, para [48]-[49]). He submitted that this indicates that his construction of cl 20B has work to do even if the reference in cl 20B(2)(b) to an 'environmental planning instrument' includes the Infrastructure SEPP and this demonstrates that the Council's construction should not be accepted (Written submissions, page 13, para [49]-[50]).

[17]

The Council's submissions in reply

Ms Walker responded to Mr Nash's submission regarding cl 130 of the Infrastructure SEPP, putting that the Council had already acknowledged that cl 130 was an exception to the rule she had posited in her earlier submissions. Ms Walker noted that cl 130 is contained in Division 26, which is titled 'Special provisions' and accepted that this clause would not conform to the overall pattern she had submitted is contained in Part 3 of the SEPP (Written submissions in reply, page 3, para [8]).
Ms Walker noted that, for her construction to be correct, she did not rely on there being no exceptions to the pattern, but merely the existence of a pattern, and that she is asking the Court to draw from that pattern, a conclusion about the intention of the drafters of cl 20B(2)(b).
Ms Walker noted that the pattern she had detailed in her earlier submissions existed before cl 20B(2)(b) was amended to its current wording, and when the amendment to effect the current wording was being made, the drafters would have been aware that in most cases development which was complying under any provision of the Infrastructure SEPP would also have been permissible with consent under an earlier provision of the same division.
Ms Walker then submitted that it was inherently unlikely that the drafters would have chosen "an environmental planning policy" instead of "under this policy" if they intended that permissibility under the SEPP itself could satisfy cl 20B(2)(b) (Written submissions in reply, page 3, para [9]).
Ms Walker stressed in her submissions in reply that the Council was not asking the Court to draw any inferences about which policy the drafters would have been more likely to adopt but to determine which intention was indicated by the terms of cl 20(2)(b) read in context and having regard to its history (Written submissions in reply, page 3, para [10]).
Ms Walker then further canvassed the history of cl 20B(2)(b) of the Infrastructure SEPP in paras [11]-[14]. It is unnecessary to go in to detail in this aspect of her submissions as I am satisfied a plain reading of the clause indicates the correct construction of it.

[18]

Construing the contested phrase

I have earlier cited the decision of Pain J in Central Coast Council as a basis for explaining why leave was not required to commence these proceedings. Her Honour's decision also provides a useful starting point for determining the approach to determination of the appropriate understanding of the provision contested in these proceedings. Her Honour wrote, at [20]: As a matter of general principle a statute is to be construed in a manner that promotes the object or purpose of the legislation than one that would not: s 33 of the Interpretation Act 1987; Mills v Meeking (1990) 169 CLR 214 at 235. Further, the legislation is to be construed: according to its context so that it is consistent with the language and purpose of all of the provisions of the statutes; on the prima facie basis that its provisions are intended to achieve harmonious goals; and, where conflict appears to arise from the language of particular provisions such conflict must be alleviated, so far as possible, by adjusting the meaning of competing provisions to best give effect to the purpose and language of those provisions whilst also maintaining the harmony it is intended to achieve: Project Blue Sky v ABA [1998] 194 CLR 355 at [69]-[71].
As her Honour noted, the starting point for interpretation, in circumstances such as these, must necessarily be the oft-cited passage, at [69] to [71], of the plurality of the High Court in Project Blue Sky Project Blue Sky v ABA [1998] 194 CLR 355; [1998] HCA 28. The passage is in the following terms (footnotes omitted): The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
Whilst the High Court has also confirmed that, in appropriate circumstances, words can be imported by necessary implication, if the importation is necessary to give proper meaning and effect to construction of an instrument and where the necessary context requires the adding of the words, great caution is to be taken before adopting such a course. As the High Court said, in Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, at [37] and [38]: Consistently with this Court's rejection of the adoption of rigid rules in statutory construction[63], it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia[64], the question of whether a construction "reads up" a provision, giving it an extended operation, or "reads down" a provision, confining its operation, may be moot[65]. The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision[66]. It is answered against a construction that fills "gaps disclosed in legislation"[67] or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature"[68].
The position advanced by Ms Walker was that the present iteration of the Infrastructure SEPP itself provided several indicia that it was appropriate to read into cl 20B(2)(b) the implied words for which she contended. In this context, as I understood her, principal reliance was placed on cl 35, a provision in the same division of the SEPP as cll 34(8) and 37(2)(a), the combination of provisions rendering permissible solar voltaic arrays, as is here the subject of contest. Ms Walker relied on the opening element of cl 35, an element in the following terms: 35 Other development permitted with consent where electricity generating works permitted If, under any environmental planning instrument (including this Policy),
It was her submission that the presence of the words "(including this policy)" in this provision, when compared to the absence of those words in the contested provision, was a clear indicator that the legislative draughtsperson had not intended that the contested provision applied to the Infrastructure SEPP itself.
As was observed by Gibbs J in Cooper-Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, at [6]: However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.
The answer to this constructional question lies in the plain and unambiguous words of cl 20B(2)(b) itself (although they are legally, as well as linguistically, unambiguous) and that those words require, for their sense, no forced insertion of the words proposed by Ms Walker to be imported - this being, in itself sufficient to dispose of the matter
In addition, in the structure of the Infrastructure SEPP itself, there are five other clauses that invoke the requirement for satisfaction with cl 20B. These are cll 26, 58C, 71C, 116A and 130. A close reading of each of these discloses no utility of, or necessity for, the importation of the words pressed by Ms Walker for addressing the Company's solar voltaic array. If the words proposed to be read as if added, the sole function they would perform would be that proposed by Ms Walker in the provision here requiring consideration. The overall contextual reading of the instrument discloses no other support for such a forced reading.
The combination of these factors results in the absence of any necessity to read cl 20B as if the words proposed to be imported were so inserted. The summons must be dismissed.

Lithgow City Council v Newera Defendo Pty Ltd

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