[2009] HCA 41
Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1
[2012] HCA 3
Bankstown City Council v Ramahi [2015] NSWLEC 74
Binsaris v Northern Territory of Australia (2020) 270 CLR 549
[2020] HCA 22
Brown v Randwick City Council (2011) 183 LGERA 382
[2011] NSWLEC 172
Certain Lloyd's Underwriters Subscribing to Contract No 1H00AAQS v Cross (2012) 248 CLR 378
Source
Original judgment source is linked above.
Catchwords
[2009] HCA 41
Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1[2012] HCA 3
Bankstown City Council v Ramahi [2015] NSWLEC 74
Binsaris v Northern Territory of Australia (2020) 270 CLR 549[2020] HCA 22
Brown v Randwick City Council (2011) 183 LGERA 382[2011] NSWLEC 172
Certain Lloyd's Underwriters Subscribing to Contract No 1H00AAQS v Cross (2012) 248 CLR 378[2012] HCA 56
Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1[2013] HCA 2
Community Association DP 270253 v Woollahra Municipal Council (2013) 211 LGERA 412[2013] NSWLEC 184
HFM043 v Republic of Nauru (2018) 359 ALR 176[2018] HCA 37
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531[2010] HCA 1
Lu v Walding (No 2) (2021) 249 LGERA 1[2021] NSWLEC 21
Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252[2016] NSWLEC 26
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144[2011] HCA 32
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179[2014] HCA 24
Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 96 ALJR 209[2021] HCA 39
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
[1998] HCA 28
R v Hickman
Ex Parte Fox (1945) 70 CLR
[1945] HCA 53
Reseck v Commissioner of Taxation (Cth) (1975) 133 CLR 45
[1975] HCA 38
Sydney Sea Planes Pty Ltd v Page (2021) 106 NSWLR 1
[2017] HCA 34
Taylor v Centennial Newstan Pty Ltd (2009) 76 NSWLR 379
[2009] NSWCA 276
Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531
[2014] HCA 9
Trives v Hornsby Shire Council (2015) 89 NSWLR 268
Judgment (14 paragraphs)
[1]
Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Universal Property Group v Blacktown City Council [2020] NSWCA 106
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Texts Cited: Explanatory Note to the Covid-19 Legislation Amendment (Emergency Measures - Miscellaneous) Bill 2020
New South Wales, Legislative Parliamentary Debates, Legislative Assembly, 12 May 2020
Category: Principal judgment
Parties: Michael Rex Norman (Applicant)
Central Coast Council (Respondent)
Representation: Counsel:
J Lazarus SC and T Poisel (Applicant)
L Mulligan and S Simmington (Respondent)
These proceedings for consent orders concern a judicial review challenge to the validity of a condition of a deferred development consent granted by the respondent, the Central Coast Council ("Council"), on 12 October 2021, in favour of the applicant, Michael Norman ("consent").
The impugned condition purports to impose a 12 month period of compliance in respect of four deferred commencement conditions ("the condition") to avoid the consent lapsing.
The challenge to the condition is on the basis that it contravenes s 4.53(6)(b) and (6B) of the Environmental Planning and Assessment Act 1979 ("EPAA"), and therefore, the Council has no power to impose it.
For the reasons that follow, I am satisfied that the imposition of the condition was contrary to s 4.53(6)(b) and (6B) of the EPAA and that relief to the effect of that sought in the summons ought to be granted.
[4]
The Council Approves a Rural Subdivision by the Granting of a Deferred Development Consent
The relevant background facts to the proceedings were agreed to between the parties.
On 27 March 2018 SJH Planning & Design (on behalf of Norman) lodged development application DA 54061/2018 with the Council, seeking consent for a rural subdivision and the construction of a dwelling on each subdivided lot on land known as 46-56 Kerns Road, Kincumber.
On 12 October 2021 the Council granted the consent, including four deferred commencement conditions imposing a 12 month period for their completion.
The condition stated as follows (emphasis added):
This consent does not operate until the following have been satisfied:
A In accordance with section 4.16(3) of the Environmental Planning and Assessment Act 1979, a deferred commencement consent is granted to Development Application No. 54061 for subdivision of six (6) lots to create six (6) lots with a dwelling on each lot on Lot 11 DP 2180, Lot 12 DP 2180, Lot 13 DP 2180, Lot 31 DP 2180, Lot 32, DP 2180, Lot 33 DP 2180, No.54 Kerns Road Kincumber,,50 Kerns Road Kincumber,46 Kerns Road Kincumber,48 Kerns Road Kincumber, 52 Kerns Road Kincumber,56 Kerns Road Kincumber is subject to the following conditions being met to the satisfaction of Council within twelve (12) months of the date of this consent. Such satisfaction will be achieved by:
…
Upon compliance with the conditions of deferred commencement and written notification by Council, the consent shall become operative subject to the attached conditions.
Evidence must be produced to the consent authority sufficient to enable it to be satisfied that above conditions have been complied within twelve (12) months of the date of this approval, otherwise this consent will lapse.
The consent was granted within the "prescribed period" as defined in s 4.53(8) of the EPAA (see below).
On 28 October 2021 the Council published a notice, in accordance with cl 124 of the Environment Planning and Assessment Regulation 2000, for the purpose of s 4.59 of the EPAA.
On 16 August 2022 Norman filed the summons to commence Class 4 proceedings in this Court challenging the validity of the condition.
The proceedings were expedited on 26 August 2022 due to the imminent lapsing of the consent in October 2022.
[5]
The Statutory Framework Governing the Lapsing of Consents
At the time that the consent was granted, s 4.16(3) of the EPAA provided:
4.16 Determination
…
(3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
Section 4.53 of the EPAA relevantly stated (emphasis added):
4.53 Lapsing of consent
(1) A development consent lapses -
(a) 5 years after the date from which it operates if the development consent commences operation after the prescribed period, or
(b) 5 years after the date from which it operates if the development consent commences operation during the prescribed period, or
(c) 2 years after the date on which the development consent would otherwise have lapsed if the development consent commenced operation before, and has not lapsed at, the commencement of the prescribed period.
(2) A consent authority may reduce a period specified in subsection (1)(a) or (b) in granting development consent.
(3) Subsection (2) does not -
(a) apply to development consent granted to a concept development application under Division 4.4 for development that requires a subsequent development application and consent, or
(b) authorise a reduction to be made that would cause -
(i) a development consent to erect or demolish a building or to subdivide land to lapse within 2 years after the date from which the consent operates, or
(ii) a development consent that commences operation during the prescribed period to lapse within 5 years after the date from which the consent operates, or
(iii) a development consent of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the consent.
(3A) For a development consent that lapsed after the commencement of the prescribed period and before the commencement of subsection (1)(c) -
(a) the development consent is taken not to have lapsed, and
(b) subsection (1)(c) applies to the development consent.
…
(6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within -
(a) 5 years after the grant of consent if the consent is granted after the prescribed period, or
(b) 5 years after the grant of consent if the consent is granted during the prescribed period, or
(c) 2 years after the date on which the development consent would otherwise have lapsed if -
(i) the grant of consent was before the commencement of the prescribed period, and
(ii) the development consent has not lapsed at that commencement.
(6A) A consent authority may reduce a period specified in subsection (6)(a) or (b) in granting development consent.
(6B) Subsection (6A) does not authorise a reduction to be made that would cause a development consent granted during the prescribed period to lapse within 5 years after the date on which it was granted.
…
(8) In this section -
prescribed period means the period commencing on 25 March 2020 and ending on 25 March 2022.
[6]
Issues for Determination
On any view, the proceedings have been filed out of time either pursuant to s 4.59 of the EPAA or r 59.10(1) of the Uniform Civil Procedure Rules 2005 ("UCPR"), both of which stipulate a time period of three months by which proceedings are to be commenced. A threshold question arises as to whether the Court has the power to extend time to commence the proceedings.
The principal issue for determination concerns the proper construction of s 4.53 of the EPAA. That is, does it prohibit a consent authority from imposing a condition that reduces the time period within which to satisfy deferred commencement conditions to less than five years when granting development consent.
The issue arises because of an apparent conflict between the operation of s 4.53(6A) of the EPAA, which empowers a consent authority to reduce the period specified in s 4.53(6)(a) "or (b)" without limitation, and s 4.53(6)(b) and (6B) of that Act, which prohibit a consent authority reducing the same period to less than five years after the date of its grant. The provisions are seemingly irreconcilable.
[7]
The Court Extends Time to Commence the Proceedings
Norman filed the summons seeking judicial review approximately 14 months after the Council publicly notified consent. This was plainly in excess of the three month limitation period imposed by s 4.59 of the EPAA:
4.59 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 a 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.
It was also out of time for the purpose of r 59.10(1) of the UCPR which requires proceedings to be brought within three months from the date of the decision under review. The consent was granted on 12 October 2021 and the summons was filed on 16 August 2022, that is, 10 months later. Accordingly, Norman requires leave to bring the proceedings out of time.
Rule 59.10 of the UCPR provides that:
59.10 Time for commencing proceedings
(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.
(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).
(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following -
(a) any particular interest of the plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.
(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.
(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
As r 59.10(4) of the UCPR makes plain, if the limitation period contained in s 4.59 of the EPAA applies, then the statutory limitation period in r 59.10(1) does not apply and neither does the power of the Court to extend time contained in r 59.10(2) (Bankstown City Council v Ramahi [2015] NSWLEC 74 at [72]-[73] per Preston J and Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252; [2016] NSWLEC 26 at [74]).
[8]
The Proper Construction of s 4.53 of the EPAA
As stated above, resolution of the principal issue concerns the proper construction of s 4.53 (6)(b), (6A) and (6B) of the EPAA.
[9]
The Relevant Principles of Statutory Construction
It is convenient to briefly outline the principles of statutory construction applicable to the determination of the principal issue.
First, the fundamental object of statutory construction is to ascertain the objective intention of the legislature by reference to the language of the statute read as a whole and having regards to its purpose (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]). The modern approach to statutory construction emphasises the centrality of the text as the starting point (Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [31], SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] and [37] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]). That is, "the process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose" (Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 at [26]. See the useful summary of the principles applicable to statutory construction in Sydney Sea Planes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [26]-[41]).
Second, the context includes the general policy and purpose of a provision, and in particular, the mischief it is seeking to remedy (s 33 of the Interpretation Act 1987 and Binsaris v Northern Territory of Australia (2020) 270 CLR 549; [2020] HCA 22 at [54]).
Third, determination of the proper construction of a statute may be assisted by reference to extrinsic materials. However, historical considerations and extrinsic materials cannot be relied upon to supplant the clear meaning of the language (Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 96 ALJR 209; [2021] HCA 39 at [87]). As Kiefel J (as her Honour then was) cautioned in Certain Lloyd's Underwriters Subscribing to Contract No 1H00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 (at [89]):
89 It is legitimate to resort to materials outside the statute, but it is necessary to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit.
[10]
The Submissions of the Parties
As the parties jointly submitted, the operation of s 4.53 of the EPAA gives rise to an internal inconsistency, namely, that s 4.53(6)(b) states that a deferred development consent will lapse after five years where there has been non-compliance with its conditions. However, s 4.53(6A) of that Act empowers the Council to impose some lesser time period than the five years stipulated in s 4.53(6)(b). This is expressly contradicted by s 4.53(6B) which says that s 4.53(6A) does not empower a consent authority to impose a time period that would cause a consent to lapse before five years after the date upon which it was granted. In other words, s 4.53(6A) permits the Council to impose the condition in the consent, whereas s 4.53(6B) prohibits that same condition. The two provisions are wholly contradictory and cannot be reconciled.
Applying the principles outlined above, the parties therefore contended that it is necessary to read down the words "or 6(b)" contained in s 4.53(6A) by way of omission in order to remedy the obvious inherent defect. This is because:
1. first, as was common ground, the consent was granted during the prescribed period, and therefore, falls within the ambit of s 4.53(6)(b) of the EPAA which provides for a five year lapsing period;
2. second, there is a textual conflict between s 4.53(6A) and (6B) as described above, which leads to inconsistency within the Act and absurdity of result;
3. third, when the Court has regard to the legislative history of s 4.53 of the EPAA, the extrinsic materials reveal that the legislative intention was that deferred commencement consents granted during the prescribed period should not lapse before the expiration of five years; and therefore
4. fourth, s 4.53(6A) must be read down to confine the operation of s 4.53(6B) to ensure that the Council cannot impose a lesser lapsing period than the five year period specified in s 4.53(6)(b).
Resolution of the internal textual dissonance within s 4.53 of the EPAA at the heart of these proceedings accordingly necessitates consideration by the Court of whether there is a drafting error contained within s 4.53, and if so, whether s 4.53(6A) of the EPAA should be read down in the manner proposed above to avoid it.
[11]
Section 4.53(6A) Must be Construed to Correct a Drafting Error
Recourse to the literal text of s 4.53 of the EPAA is of limited assistance in circumstances where s 4.53(6A) and (6B) are directly contradictory. In order to better understand the genesis of this drafting anomaly, and the intended operation of the provision, recourse to extrinsic materials is warranted.
Section 4.53(6), (6A) and (6B) of the EPAA were inserted into that Act by the Covid-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020 ("Covid-19 Amendment Act"), which came into force on 14 May 2020. That Act sought to amend various enactments in order to implement emergency measures occasioned by the Covid-19 pandemic. As emergency legislation, it was appropriate to draft and pass the Covid-19 Amendment Act with alacrity.
Prior to the Covid-19 Amendment Act, s 4.53(6) of the EPAA granted the Council wide discretionary power to impose variable time limits within which deferred commencement conditions had to be satisfied:
4.53 Lapsing of consent
…
(6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified.
Thus, a proponent had a maximum of five years within which deferred commencement conditions had to be complied with but a lesser time period could be specified for by the consent authority.
The Covid-19 Amendment Act was introduced as the Covid-19 Legislation Amendment (Emergency Measures - Miscellaneous) Bill 2020 ("the Covid-19 Amendment Bill") into the New South Wales Legislative Assembly on 12 May 2020.
The second reading speech of the Covid-19 Amendment Bill, by the Attorney-General for New South Wales, the Hon Mark Speakman SC MP, explained the purpose of the Bill as follows (New South Wales, Legislative Parliamentary Debates, Legislative Assembly, 12 May 2020, 2033 ("Covid-19 Amendment Bill Speech")):
The Government has made various adjustments to government processes and systems to ensure that essential services can continue to be provided while practising social distancing and reducing personal contact in adherence with NSW Health guidelines and health orders.
[12]
The Council is to pay Norman's Costs
The parties consented to an order that the Council pay Norman's costs of the proceedings. These being Class 4 proceedings, such an order is appropriate in circumstances where the Council purported to impose a condition absent any power to do so.
[13]
Orders
The orders of the Court are as follows:
1. an order pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 that time to commence the proceedings be extended to 16 August 2022, the date upon which the summons was filed;
2. in relation to development consent DA54061/2018 granted by the Council on 12 October 2021, a declaration that the 12 month period for the satisfaction of the deferred commencement conditions referred to in section A of that consent is invalid;
3. an order setting aside the 12 month period for the satisfaction of the deferred commencement conditions referred to in section A of that consent;
4. the Council is to pay Norman's costs of the proceedings; and
5. the exhibits are to be returned.
[14]
Amendments
20 September 2022 - Corrected paragraph numbering.
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: 20 September 2022
Whether a provision that imposes a limitation period on otherwise available relief, such as s 4.59 of the EPAA (formerly s 101 of that Act), amounts to an impermissible constraint upon a court's ability to review a decision for jurisdictional error, and the interaction of that time limit with r 59.10(2) of the UCPR, is not without controversy.
In Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172 Preston J determined that the three month limitation period contained in s 101 was to be read down so as to preserve the supervisory jurisdiction of the Court to review for jurisdictional error (at [37] and [39]).
Brown has been applied in a number of cases in this Court (see Community Association DP 270253 v Woollahra Municipal Council (2013) 211 LGERA 412; [2013] NSWLEC 184 at [74] and IPM at [70]).
However, in Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Basten JA was more equivocal, opining as follows (at [46] and [48]-[49], Macfarlan and Meagher JJA agreeing, footnotes omitted):
46 The expansion of Kirk beyond its sphere of operation must be undertaken with caution. It was concerned with review by this Court of a decision of a superior court of record, albeit one with limited jurisdiction, namely the Industrial Court. It was not, in terms, concerned with decisions of non-judicial bodies. Further, it was concerned with a strong form of privative clause, not a provision imposing a limitation period on otherwise available relief. Both these matters raise difficult questions which should not be determined unless they squarely arise. For example, s 101 of the EP&A Act does not directly affect the jurisdiction of this Court to review an administrative decision. It imposes a limit on review by the Land and Environment Court, although the reason for that lies in other statutory provisions which confer exclusive jurisdiction on the Land and Environment Court with respect to the supervisory jurisdiction involving a planning or environmental law, which includes the EP&A Act.
…
48 With respect to the second aspect, the effect of a limitation period is simply not discussed in Kirk. It was, however, discussed in a case dealing with the scope of possible regulation of the jurisdiction of the High Court, pursuant to s 73 of the Constitution, of a limitation period on review of administrative decisions under the Migration Act 1958 (Cth). That decision, Bodruddaza v Minister for Immigration and Multicultural Affairs held that a similar (12 week) limitation period (imposed by s 486A of the Migration Act) was not effective to diminish the power of the Court to grant remedies under s 75(v) of the Constitution. However, that reasoning with respect to the constitutional limits of the Commonwealth Parliament does not necessarily lead to the same conclusion with respect to the limits imposed on a State legislature. The question in that regard, as identified in Kirk, is whether such a limitation would remove "a defining characteristic" of the Supreme Court of a State, so as to contravene the requirement of s 73 of the Constitution that such a body continue to exist.
49 This is a large question. As Bodruddaza explained, there can be significant practical difficulties with limitation periods expressed in absolute terms which deny any discretion to a Court to extend time in circumstances where the justice of the case so demands. On the other hand, decisions under the EP&A Act are quite different in their nature from decisions under the Migration Act and operate in a different context, involving quite different elements of public interest.
The question continues to be a "large" one (Trives at [49]) which has yet to be answered by an appellate court.
More recently, in Lu v Walding (No 2) (2021) 249 LGERA 1; [20221] NSWLEC 21 Pain J held that while the applicants' challenge in that matter was time-barred pursuant to s 101 of the EPAA, the jurisdictional error was not one that was immune from review by the operation of s 101 of that Act, applying the decision in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 and R v Hickman; Ex Parte Fox (1945) 70 CLR; [1945] HCA 53. Her Honour held as follows (at [120] and [122]):
120 The significant matter which did not need to be considered in Brown and IPM, and was not by me in Community Association and Gindurra is the difference between the time-limited provision in s 101, the importance and adequacy of the three month public notification period and the different nature of the absolute privative clause in Kirk. The matter is very finely balanced but I ultimately consider that Kirk does not require that long-established caselaw concerning the application of s 101 ought to be put to one side.
…
122 I consider the application of Kirk to s 101 in the statutory scheme in the EPA Act does not require a change from the approach in Pallas Newco, which affirmed the importance of the three month period in limiting the period of uncertainty for holders of development consents. The continued application of the Hickman principles as recognised in Pallas Newco must therefore also be considered.
Because of the substantial financial prejudice to the applicants in that case caused by the passage of time if the relief sought was granted (demolition in respect of the subject building was almost complete), leave to commence and continue the proceedings was granted pursuant to r 59.10(2) of the UCPR.
The reasoning in Lu v Walding (No 2) is not entirely consonant with that expressed in Brown and IPM, but the result is the same, namely, that s 4.59 of the EPAA does not prevent the Court from engaging in judicial review of a decision infected by jurisdictional error whether by reason of the application of Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 or the Hickman principles.
In this case, if, as the parties assert, the Council imposed the condition absent any power to do so under s 4.53 of the EPAA, there is no doubt that the error is one of jurisdiction, and therefore, is amenable to review.
The Council did not seek to press the limitation point. Nevertheless, it must be considered by the Court as a jurisdictional issue. This is because if the proceedings are statute barred under s 4.59 of the EPAA and there is no power to extend time under r 59(2) of the UCPR, then the Court cannot hear and determine the matter.
In the present proceedings, unlike Lu v Walding (No 2), no notice has been issued by the parties pursuant to s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General as is required when a constitutional issue falls for consideration by the Court. Whether the operation of s 4.59 of the EPAA is constrained by the principles espoused in Kirk gives rise to a matter arising under the Constitution and s 78B notices would otherwise need to be issued.
However, in circumstances where applying either the reasoning in Lu v Walding (No 2), or that contained in Brown and IPM, has the effect that the time bar in s 4.59 of the EPAA does not apply to the present case, there is no need to determine any matter arising under the Constitution and the absence of s 78B notices will not prevent the Court from proceeding to entertain the matter.
The Council did not cavil with the suggestion that time ought to be extended under r 59.10(2) of the UCPR. This was so in light of the prejudice that will be suffered by Norman if the relief sought by him in the summons is not granted, namely, the consent will lapse.
I therefore extend time to file the summons to 16 August 2022 pursuant to r 59.10(2) of the UCPR.
This sentiment is consistent with s 34(1) of the Interpretation Act:
34 Use of extrinsic material in the interpretation of Acts and statutory rules
(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material -
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b) to determine the meaning of the provision -
(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
Fourth, there is a presumption that legislation operates harmoniously (Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [78] and [98] and Universal Property Group v Blacktown City Council [2020] NSWCA 106 at [13]) and, fifth, in such a manner that avoids surplusage (Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [97]).
Sixth, where there is an apparent inconsistency between provisions within an Act, "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" (Project Blue Sky at [70] and Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 at [25]). This may be achieved by construing provisions in such a way that the apparent inconsistency disappears (Reseck v Commissioner of Taxation (Cth) (1975) 133 CLR 45; [1975] HCA 38 at 53-54). If not, it is necessary to determine which is the leading provision and which is the subordinate and to construe the latter subject to the former (Project Blue Sky at [70]).
Seventh, the Court may, to some extent, correct errors in drafting by adding or omitting words in a provision when to do so is necessary to ensure that the provision does not lead to absurdity or unworkable results, gives rise to an inconsistency with other parts of the statute, or to avoid defeating the clear purpose of a provision (Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [40] and Taylor v Centennial Newstan Pty Ltd (2009) 76 NSWLR 379; [2009] NSWCA 276 at [90]). In Taylor the High Court said (at [37]-[38], footnotes omitted)):
37 Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, 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, 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.
38 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. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".
Such instances will, however, be relatively rare.
Furthermore, although permissible to imply words into legislation as part of the interpretative task (as opposed to correcting obvious printing or drafting errors - in such case it is obvious that the text does not accurately conform with the actual intention of Parliament), a court's ability to engage in this process is understandably circumscribed. There must be clear necessity to depart from the text of the legislation.
In Wentworth Securities Ltd v Jones [1980] AC 74 Lord Diplock stipulated three conditions that must be satisfied before a court can modify the words of an Act (at 105-106):
First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
The debate that followed this statement by his Lordship was settled in Australia by the High Court in Taylor, who, having set out the principles quoted earlier in this judgment, said (at [39] and [40]), footnotes omitted):
39 Lord Diplock's three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution (a firm)) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that "the modified construction is reasonably open having regard to the statutory scheme" because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, "[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances."
40. Lord Diplock's speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be "too far-reaching". In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution.
Nevertheless, it must be remembered that "the constructional task remains throughout to expound the meaning of statutory text, not to remedy gaps disclosed in it or repair it" (HFM043 v Republic of Nauru (2018) 359 ALR 176; [2018] HCA 37 at [24]). Put simply, courts are not the Parliament and great caution must be exercised not to trespass upon the legislative function.
More specifically, with respect to proposed amendments to the EPAA, he stated that (Covid-19 Amendment Bill Speech, 2037):
The third bill amends the Environmental Planning and Assessment Act 1979 to extend the dates upon which consents for development would otherwise have lapsed to at least five years from the date that consent was granted. It will help businesses and land owners who businesses may be shut down or who are facing difficulties in securing development finance, materials and labour during the pandemic to undertake approved developments once economic conditions have improved.
The Covid-19 Amendment Bill provided that the EPAA be amended as follows (Sch 1, s 1.11, item [2], emphasis added):
1.11 Environmental Planning and Assessment Act 1979 No 203
…
[2] Section 4.53(6)-(6C)
Omit section 4.53(6). Insert instead -
(6) Despite any other provision in this section, a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses if the applicant fails to satisfy the consent authority as to the matter specific in the condition within -
(a) 5 years after the grant of consent if the consent is granted after the prescribed period, or
(b) 7 years after the grant of consent if the consent is granted during the prescribed period, or
…
(6A) A consent authority may reduce a period specified in subsection (6)(a) or (b) in granting development consent.
(6B) Subsection (6A) does not authorise a reduction to be made that would cause a development consent granted during the prescribed period to lapse within 5 years after the date on which it was granted.
In this form, s 4.53 prescribed that deferred development conditions be complied with within seven years, but that this could be reduced by the consent authority to some other time period of between seven and five years, but no less than five years.
The Explanatory Note to the Covid-19 Amendment Bill provided (emphasis added):
Item [1] of the proposed amendments to the Environmental Planning and Assessment Act 1979 (the Principal Act) extends the period for the lapsing of development consents that come into operation during the period of 2 years after 25 March 2020 (the prescribed period) or that were already in operation when the prescribed period commenced. The lapsing of those development consents is extended by 2 years. A development consent granted during the prescribed period will now lapse 7 years after it comes into operation unless the consent authority specifies a lesser period when granting consent. However, that lesser period must not be less than 5 years after the development consent comes into operation. Item [2] of the proposed amendments makes similar changes to the lapsing of development consents with deferred commencement provisions. Item [3] makes a consequential amendment.
The amendments were opposed by the opposition, who were of the view that a seven years lapsing period was too long. By amendment, the opposition sought to reduce the time period within which a development consent, including a deferred development consent, lapsed from seven years to five years. It therefore moved amendments to the Covid-19 Amendment Bill on 12 May 2020 as follows:
The Hon ADAM SEARLE (21:37:40): By leave, I move Opposition amendments Nos 1 and 2 on sheet c2020-035C in globo:
No. 1 Lapsing of development consent (Environmental Planning and Assessment Act 1979)
Page 14, Schedule 1, 11[1], line 16. Omit "7 years". Insert instead "5 years".
No. 2 Lapsing of development consent (Environmental Planning and Assessment Act 1979)
Page 15, Schedule 1, 11[2], line 3. Omit "7 years". Insert instead "5 years".
… The Opposition thinks seven years is excessive and unnecessary. If it ultimately becomes necessary the Government will no doubt return to this place with a renewed proposal. The two amendments advanced by the Opposition omit the seven years and reinstate the existing five years.
The amendments were accepted (see the Schedule of Amendments dated 13 May 2020) and the Covid-19 Amendment Act was passed, making consequential amendments to the EPAA which resulted in the enactment of s 4.53 in its current form.
The extrinsic material reveals that:
1. the legislature intended to amend, by the enactment of the Covid-19 Amendment Act, the previously wide discretionary power conferred upon consent authorities contained within s 4.53 of the EPAA to impose some lesser period for the lapsing of deferred development consents. This was to provide additional time to a proponent to comply with deferred development conditions, having regard to the constraints imposed on economic activity by the pandemic due to the imposition of public health measures (Chu v Inner West Council (2022) 251 LGERA 211; [2022] NSWLEC 14 at [56]);
2. Parliament initially proposed a seven year time period within which deferred commencement conditions could be satisfied. The initial intention was that the seven year period could be reduced to a period of no less than five years by the consent authority. In the first draft of the Covid-19 Amendment Bill, s 4.53(6)(b), (6A) and (6B) could be construed harmoniously insofar as s 4.53(6A) preserved a consent authority's discretion to impose a limitation period of between five and seven years; and
3. the amendments moved to the Covid-19 Amendment Bill changed the proposed seven year period to a five year period in s 4.53(6)(b). However, no cognate textual change was made to s 4.53(6A). This was necessary to give effect to the legislature's intention to afford additional time to proponents whose deferred development consents were granted during the prescribed period, that is, during the period when most of the public safety measures limiting development were operative.
The resultant inconsistency between s 4.53(6)(b), (6A) and (6B) of the EPAA ought, in my opinion, to be characterised as a drafting error warranting the Court's intervention. As the extrinsic material makes tolerably clear, the intention of the legislature, as reflected in the Covid-19 Amendment Act, was to afford the holders of deferred development consents no more but no less than five years to comply with conditions of consent for deferred development consents granted during the prescribed period, a period that covered the time during which necessary pandemic restrictions were in place in order to protect the public. To construe s 4.53(6A) literally would be contrary to this purpose.
Intervention is therefore warranted in the form of reading down sub-section (6A) so as to omit the reference to "or (6)(b)" in that provision. In addition to the reason already provided above, such an approach is justified because:
1. s 4.53(1)-(3) of the EPAA, which deals more generally with development consents, and s 4.53(6)-(6C), are drafted in similar terms. Section 4.53(3)(b)(ii) also fetters a consent authority's discretion to reduce the time period that a proponent has to comply with a development consent before it lapses. There is no reason to suggest that Parliament intended to enact a different regime for deferred commencements consents. The construction posited above renders the lapsing periods harmonious for both forms of consent;
2. it is evident from the extrinsic material that Parliament intended for a lapsing period of five years;
3. the alternative construction of s 4.53, that is, to omit s 4.53(6B) and to preserve the Council's unfettered discretion to reduce the limitation period, does not accord with Parliament's intention and does far greater linguistic violence overall to the provision; and
4. by omitting the words "or (b)" in s 4.53(6A), work is given to sub-section (6B) in a manner that least offends the presumption against surplusage.
Section 4.53(6A) of the EPAA should therefore be read down to exclude the reference to "or (b)". A consent authority is therefore not authorised by operation of s 4.53(6B) to reduce the five year period specified in s 4.53(6)(b) for a deferred development consent to lapse. It therefore follows that the Council had no power to impose a condition in the consent purporting to reduce time for compliance with the deferred development conditions in section A of that consent to 12 months and the condition is invalid.