NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd

The appeal to this Court

1. Pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW), an appeal lies to this Court as of right, but confined to a question of law.
2. The Commissioner has appealed. His first ground contends that the Land and Environment Court lacked jurisdiction to hear and determine the matter. This plainly falls within the scope of the right of appeal.
3. The second ground of appeal, pursuant to an amendment made on 20 March 2019, is in the following terms: "The decision was made on an error of law that the relevant scope of the inquiry into safety of a proposed event under condition 7 of development consent 2016.007.01: (a) allowed the Court to facilitate the First Respondent's giving of undertakings to address matters of concern identified by the Appellant or the Court; and (b) was informed by general principles of planning law that assumed the First Respondent would comply with imposed obligations."
4. It is far from clear that the second ground falls within the scope of the right of appeal conferred by s 57(1).
5. At some stage, Richmond Valley Council was joined to the proceedings at first instance as a second respondent. It is a party to the appeal, but has filed a submitting appearance.
6. More importantly, the successful applicant, Rabbits Eat Lettuce, also filed a submitting appearance in this Court, on 25 February 2019. This appears to have led to some delay in listing the appeal for hearing. In the absence of a contradictor, the Registrar made orders for an amicus on 29 May 2019, and Mr A G Martin of counsel filed submissions on 11 June 2019, to which the police responded by 26 paragraphs in 7 pages filed on 17 June 2019.

Former s 97 and current s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW)

1. Formerly, s 97 was relevantly in the following terms: "97 Appeal by applicant - development applications (1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the Court within 6 months after: (a) the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or (b) the date on which that application is taken to have been determined under section 82 (1). (2) An applicant who is dissatisfied with a decision that a consent authority, or a person specified by the consent authority, is not satisfied as to a matter, being a specified aspect of the development that is to be carried out to the satisfaction of the consent authority, or person, pursuant to a condition imposed under section 80A (2), may appeal to the Court within 6 months after: (a) the consent authority or person notifies the applicant of its decision, or (b) the date on which the applicant's request is taken to have been determined under section 80A (3). (3) An applicant who is dissatisfied with a decision that a consent authority is not satisfied as to a matter, being a matter as to which it must be satisfied before a "deferred commencement" consent under section 80 (3) can operate, may appeal to the Court within 6 months after the consent authority notifies the applicant of its decision. (4), (5) (Repealed) (6) An appeal under this section relating to a development application for consent to carry out designated development in respect of which an objection has been made in accordance with the regulations must not be heard by the Court until after the expiration of the time within which an objector may appeal to the Court under section 98. ..."
2. It will be seen that s 97(1) conferred a right of appeal following the actual or deemed determination of a development application. Subsection 97(2) conferred a right of appeal following the actual or deemed decision pursuant to a condition imposed under s 80A(2) where the consent authority or a person specified by the consent authority was not satisfied that a specified aspect of the development had been carried out to its satisfaction. Subsection 97(3) conferred a right of appeal relating to a deferred commencement condition imposed under s 80(3).
3. With effect from 1 March 2018, s 97 was replaced by s 8.7. Section 8.7, which Rabbits Eat Lettuce Pty Ltd invoked, is in the following terms: "8.7 Appeal by applicant - applications for development consent (cf previous s 97) (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. (2) For the purposes of this section, the determination of an application by a consent authority includes: (a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or (b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate. (3) An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court."
4. As explained in more detail below, s 8.7 does at least the same work as former s 97, but employs different language and a different drafting technique. Rather than three separate rights of appeal from each of the decisions identified in s 97(1), (2) and (3), s 8.7(1) uses broad language to confer a single right of appeal from "the determination of [an] application by the consent authority" and then in subs (2) expands the meaning of "determination of an application by a consent authority" to include decisions corresponding to former s 97(2) and 97(3).
5. The amendments give rise to two questions of jurisdiction. The second was ground 1 of the appeal, which is as to the scope of the right of appeal created by s 8.7. However, it is as well to commence with the first question, which is the jurisdiction of the Land and Environment Court.

The jurisdiction of the Land and Environment Court

1. The Land and Environment Court is a superior court of record constituted by s 5 of the Land and Environment Court Act 1979 (NSW). It has such jurisdiction as is vested in it by that Act or any other Act: s 16(1). Section 16(2) divides the jurisdiction of the Court into 8 "classes". Significantly for present purposes, s 17 provides that: "The Court has jurisdiction (referred to in this Act as "Class 1" of its jurisdiction) to hear and dispose of the following: ... (d) appeals, objections and applications under sections 75K, 75L, 75Q, 75W (5), 95A, 96, 96A, 97, 97AA, 98, 98A, 109K, 121ZK, 121ZM, 121ZS and 149F of the Environmental Planning and Assessment Act 1979, ..."
2. With effect from 1 March 2018, the provisions of the Environmental Planning and Assessment Act 1979 (NSW) were renumbered and, in part, reworded. Those amendments give rise to the issue presented by ground 1 of this appeal. However, s 17 of the Land and Environment Court Act was not amended, and still refers, inter alia, to s 97 of the Environmental Planning and Assessment Act. There is no longer any section of that statute numbered 97. Broadly speaking, the renumbering which came into effect on 1 March 2018 has replaced the former s 97 by s 8.7.
3. The disconnection between s 17 of the Land and Environment Court Act and the renumbered provisions of the Environmental Planning and Assessment Act did not affect the jurisdiction of the Land and Environment Court. Reference was made during the hearing to cl 4A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), which relevantly provides as follows: "(1) In this clause: document means any Act or statutory or other instrument or any contract or agreement, and includes any document issued or made under or for the purposes of any Act or statutory or other instrument. (2) A reference in any document (whether enacted, issued or made before or after the commencement of this clause) to a provision of the Act that has been renumbered or relocated by the Environmental Planning and Assessment Amendment Act 2017 is taken to be a reference to the renumbered or relocated provision. ... ... (4) This clause is subject to any contrary intention in the provision in which a relevant reference occurs. (5) In this clause: relocated includes repealed and re-enacted, with or without modification. Note. See the concordance table of renumbered and relocated provisions at the end of historical notes to the in-force version of the Environmental Planning and Assessment Act 1979 on the NSW legislation website."
4. I would accept the Commissioner's submission that s 17 of the Land and Environment Court Act is a "document" for the purposes of the regulation. I would also accept that s 8.7 is a "relocated" provision corresponding to the former s 97. It may fairly be described as s 97 after it has been "repealed and re-enacted, with or without modification", within the meaning of "relocated". That is because it is clear that all of the work formerly done by s 97 is now done by s 8.7. (Whether s 8.7 on its true construction performs more work than former s 97 is at the heart of ground 1 of the appeal.) That conclusion also corresponds, in part, with the "concordance table" referred to in the note, although bearing in mind that neither the note nor the table is part of the statute (see s 1.4(13)), I prefer to treat that as confirmatory, rather than dispositive.
5. However, the fact that delegated legislation purports to require the 1979 statute to be read in a particular way does not seem to me satisfactorily to answer the question. How does delegated legislation change the legal meaning of a statute, absent some kind of Henry VIII clause? Although the Transitional Regulation 2017 Regulation was enacted by Parliament to have effect as a regulation under the Environmental Planning and Assessment Act (see s 10.16 of the Environment Planning and Assessment Act), cl 4A lacks any such force; it was introduced by the Environmental Planning and Assessment Amendment Regulation 2018.
6. A preferable approach, which does not involve a regulation altering the legal meaning of a statute, is to rely upon s 68(3) of the Interpretation Act 1987 (NSW): " ... in any Act or instrument: (a) a reference to an Act that has been repealed and re-enacted, with or without modification, extends to the re-enacted Act, as in force for the time being, and (b) a reference to an instrument that has been repealed and re-made, with or without modification, extends to the re-made instrument, as in force for the time being, and a reference to a provision of the repealed Act or instrument extends to the corresponding provision of the re-enacted Act or the re-made instrument, as the case may be.
7. It is sufficient to observe that, for the reasons already given, s 8.7 is the "corresponding provision" in the current statute to former s 97 for the purposes of s 68(3), and that there is nothing to displace the rule of construction in that provision. Section 68(3) and its cognates in other jurisdictions was considered and applied in Woolworths Ltd v Lister [2004] NSWCA 292.

Reasons of the primary judge and the Commissioner's submissions on jurisdiction

1. The primary judge considered that there was a "significant difference" between s 8.7 and its predecessor. The dispositive portion of his reasons was as follows: "In the version of the Act which operated prior to the amendments, s 97(2), which is in broad terms similar to that which is contained in s 8.7(2), expressly referenced conditions imposed under s 80A(2) and conferred a right of appeal with respect to it. Section 80A(2) is the equivalent of the now s 4.17(2) relating to ancillary aspects of development. No such qualifying link exists in the present s 8.7(2). The fact that, for whatever reason, the amendments to the EP&A Act have the effect of breaking the link, or nexus, between the right of appeal which had previously existed in s 97(2) and that which had previously existed in s 80A(2), must be understood to be a positive consequence of the Parliament's amendment of the legislation. I am therefore satisfied that the Court has jurisdiction to deal with the present application."
2. That brief reasoning reflects the limited scope of submissions before his Honour. The Commissioner's submissions were very brief - occupying fewer than two pages of transcript. Further, they had been prepared on very short notice, the proceedings only having been commenced the previous week. The emphasis - and, perhaps, the exclusive scope - of the submissions was that s 8.7 was confined to decisions under conditions imposed pursuant to s 4.16(3) and s 4.17(2) (the counterparts to s 80A(2) and 80(3)), no differently from its predecessor, s 97.
3. However, this Court heard submissions from senior counsel (who did not appear at first instance) for in excess of 3 hours, which made it clear that, in addition, the Commissioner complained that condition 7 was not on its true construction a condition which required anything to be carried out "to the satisfaction of the consent authority or other person", and for that reason fell outside of s 8.7. Many of the oral submissions went outside what had been supplied in writing. Most were not made to the primary judge.
4. I shall not summarise all of the Commissioner's submissions. For present purposes, it is convenient to provide the following by way of overview.
5. The Commissioner contended that the primary judge failed to have regard to legislative history, or to give weight to the textual link in the provision to the effect that it gave effect to the "previous s 97" and failed to identify any "new or particular mischief" intended to be addressed by breaking the link between appeal rights and the condition-making powers. The Commissioner complained that the primary judge failed to deal with the actual statutory language in the redrafted s 8.7(2) which, so it was said, continued to confer only limited jurisdiction to review decisions made under particular conditions imposed under particular powers.
6. The Commissioner contended that the relevant enquiry at the level of jurisdiction was to ask if the Commissioner's decision "was one that was capable of appeal under s 8.7(1) by reference to the power by which condition 7 was imposed". The Commissioner submitted that condition 7 was not imposed under the (former) s 80(3) or s 80A(2). From that, it followed that s 8.7 was not available and the Court lacked jurisdiction.
7. The Commissioner advanced a series of submissions in support of the proposition that s 8.7 had no broader operation than former s 97. The textual similarities have been mentioned above. The explanatory note accompanying the Environmental Planning and Assessment Bill 2017 contained nothing to suggest any broadening of the rights of appeal. The second reading speech, according to the Commissioner, was confirmatory of the absence of any broadening of the rights of appeal. It was stated concerning the new provisions in Part 8 that: "Part 8 contains provisions relating to reviews and appeals available to applicants for development consent and objectors. The review of determinations is extended to integrated development and for determinations by a local planning panel, the Sydney district planning panel, the regional planning panel, and some determinations by delegates of the Minister. This will reduce appeal numbers and alleviate pressure on the court. It will also give applicants an alternative option to the appeal process, potentially reducing costs and time spent." (New South Wales Legislative Council, Parliamentary Debates (Hansard), 18 October 2017). The Commissioner is correct to submit that there is nothing in that speech to suggest an expansion of the rights of appeal.
8. The Commissioner submitted that if s 8.7 was broader than former s 97, then notwithstanding that s 8.7 made provision for the time within which an appeal could be brought, including from the date of deemed refusal under s 8.11, s 8.11 was deficient, insofar as it could not apply to such a determination.
9. The Commissioner also put a series of consequentialist arguments. It was said that on the construction upheld by the primary judge, any person dissatisfied with the failure by a certifier to sign off on the completion of development would become subject to a merits review in Class 1 of the jurisdiction of the Land and Environment Court (noting that many consents required as a condition the obtaining of a completion certificate or an occupation certificate).

Consideration of ground 1

1. The starting point is the text of the new s 8.7. Certain words of limitation in former s 97(2) have been removed, those words including reference to "a specified aspect of the development". They have been replaced by words of generality: "Any decision subsequently made by the consent authority or other person" about "an aspect" of the development.
2. The following similarities and differences may be noted between the former s 97 and current s 8.7. 1. First, s 97 created three, separate, rights of appeal pursuant to subs (1), (2) and (3). Section 8.7 creates a single right of appeal, by subs (1), and uses the device of an inclusive deeming definition to identify two further distinct classes of decisions which are to be taken to amount to "the determination of an application by a consent authority" for the purposes of that single right of appeal. There is a moderately high level of artificiality in that approach, because it is plain that the extended definition includes decisions made by persons who are not "consent authorities", and decisions which do not on any ordinary meaning of the language amount to the "determination of an application". To be clear, there is nothing per se wrong in an approach which gives a non-natural meaning to a defined term. On the other hand, there is as noted above a broad comparability between the first limb of the extended definition (s 8.7(2)(a)), and s 97(2), and the second limb of the extended definition (s 8.7(2)(b)), and s 97(3) "deferred commencement" conditions. 2. Secondly, certain words of limitation have been removed from s 8.7. Rather than a reference to "a person specified by the consent authority", s 8.7(2) refers to any "other person". Similarly, rather than referring to "a specified aspect of the development", s 8.7(2)(a) refers to "an aspect of the development". 3. Thirdly, and to my mind significantly, new s 8.7(2)(a) commences with "any". There is no counterpart to that word in s 97(2). The word "any" conveys a notion of generality. The effect is to render all decisions otherwise satisfying the paragraph as falling within the extended definition. 4. It will be seen, therefore, that the deletion of any requirement that the person be specified, or the aspect be specified, and the inclusion of the word "any", are verbal changes all of which are apt to expand the class of decisions which fall within s 8.7(2)(a), over and above those which formerly had fallen within s 97(2). 5. All of the preceding textual considerations are in addition to the removal of the clearest limitation upon former s 97(2), namely, the restriction that there be a condition imposed under s 80A(2). 6. However, in contrast with the textual and structural changes summarised above, both s 97(2) and s 8.7(2)(a) preserve as an element of the delineation of those decisions which are subject to the right of appeal, that an aspect of the development "was required to be carried out to the satisfaction" of the consent authority or some other person.
3. Accordingly, irrespective of whether s 8.7 expanded the scope of the right of appeal previously available under s 97, only if there can be identified an aspect of which was "required to be carried out to the satisfaction of" the consent authority or some other person, was the right of appeal available. This was a point not mentioned by the primary judge, and seemingly was not raised before his Honour.
4. It seems sensible to start with the words in s 8.7 which have not been changed, before turning if necessary to the more complex question of the effect of the words which have been changed.
5. Only if the Commissioner of Police was required to be satisfied about an aspect of the use of the land is an appeal under s 8.7 available. But condition 7 is not expressed in terms of the Commissioner being satisfied of any matter.
6. That is not merely an observation as to the text of condition 7, and I would be disinclined to read s 8.7 narrowly, as confined to conditions which expressly referred to "carry out to the satisfaction" of a person. But as a matter of substance, condition 7 is not a condition that requires, as a pre-condition for the lawfulness of carrying out development, the obtaining of a document reflecting the fact that a nominated decision maker is satisfied that a particular aspect has been achieved to its satisfaction.
7. Both as a matter of text and as a matter of substance, condition 7 does not preclude the proponent from operating a music festival until and unless such a certificate is obtained from the Commissioner of Police. To the contrary, condition 7 confers a power pursuant to which any of three statutory bodies may advise that operating a festival is unsafe. If that power is exercised, then the festival which would otherwise be authorised by the consent becomes unlawful. Not merely as a matter of language, but as a matter of substance, this is quite different from something which has to be done in order to achieve satisfaction with the conditions of the consent.
8. There are two further points which reinforce the distinction indicated above. The first is that not only is the power not expressed in terms of any state of reasonable satisfaction, but also the safety of the event to which condition 7 is directed does not readily answer the description of an aspect of the development which is required to be carried out. Rather, the exercise of the power requires the entirety of the festival to cease.
9. The second is perhaps only a minor consideration. Condition 7 does not leave an aspect of the development for subsequent approval by a single nominated decision-maker. Rather, it confers power upon three statutory authorities (each well qualified to assess safety, and each of which would naturally focus on different risks) any one or more of whom may cause the event to cease. The fact that any one of the three separate authorities, each with different areas of expertise, may exercise the power, tends to confirm that this falls outside s 8.7(2)(a). Test the matter this way. Having regard to the different areas of expertise of those bodies, it is possible at least in theory, that more than one of those bodies might simultaneously advise that the operation of a festival was unsafe, and for quite different reasons. The Commissioner might form the view that the risk of consumption of illegal drugs was unacceptable, while the Rural Fire Service might form the view that there was an unacceptable risk of injury to festival goers from the risk of fire. It is at least awkward to see how the Land and Environment Court would hear and determined an appeal from the advice from both bodies, on separate bases, that the festival was unsafe.
10. None of the foregoing is intended to imply that the notification by a body identified in condition 7 that it regarded the festival as unsafe is unreviewable. As presently advised, I consider that the decision would amount to an exercise of public power which would be susceptible to judicial review. However, Rabbits Eat Lettuce did not seek judicial review from the Land and Environment Court, nor did judicial review issue. For the reasons given above, s 8.7 on which Rabbits Eat Lettuce relied was unavailable.

The remainder of the appeal

1. What has already been said is sufficient to dispose of the entirety of the appeal. Condition 7 is not one which engages the extended definition in s 8.7(2)(a). That conclusion is reached by focussing upon the parts of the text of s 8.7 which have not altered as a result of the renumbering of the Environmental Planning and Assessment Act.
2. That conclusion means that it is not necessary to express a view on the main question argued by the Commissioner, which was that the scope of s 8.7 is confined by s 97, notwithstanding the altered language and structure of s 8.7.
3. I have considered whether it is appropriate to go further and determine the balance of the appeal, in accordance with Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12].
4. That question is important, and to my mind quite contestable. On the one hand, as the Commissioner submits, it is difficult to discern anything in the purpose or context for the scope of the right of appeal in Class 1 proceedings to have been expanded. On the other hand, as identified above, there has been a series of textual changes all of which are apt to have an expansionary effect.
5. Even so, I think this is a case where the point should not be determined.
6. First, the main reason for determining points not necessary to the Court's order in most appeals is to avoid the need for a retrial in the event an appeal is allowed and the dispositive ground is found to have been determined erroneously. That cannot happen in the present case. Both respondents have submitted to such orders as the Court may consider appropriate. Only by reason of the appointment of an amicus has there been any contradictor.
7. Secondly, and related to this, it is ordinarily desirable for questions of law to be determined in contested litigation inter partes.
8. Thirdly, in very large measure, the appellant's oral submissions went beyond what had been supplied in writing. The appellant's submissions in chief occupied 10 pages, of which the first half addressed the facts and statutory provisions. The argument in support of ground 1 occupied 7 paragraphs over less than 2 pages. The argument in support of ground 2 occupied 6 paragraphs over less than a page. The appellant also filed a short submission in reply. However, much of the approximately 3 hours of oral submissions went further. I mean absolutely no criticism of the amicus, who assisted this Court in the best traditions of the Bar, but he had limited opportunity to respond to that which was only submitted orally on the day. If Rabbits Eat Lettuce had appeared to defend the appeal, and had sought to be heard further in response to the new oral submissions advanced by the appellant, for my part I would have found it difficult not to accede to that request.
9. Fourthly, it is far from clear that ground 2 falls within the limited right of appeal conferred by s 57(2). This was not squarely addressed in the submissions of the Commissioner or the amicus. I see no reason for this Court to engage in a highly arid question, without the benefit of full submissions, on a ground that can make no difference to the outcome.
10. Anything this Court says on the balance of the issues will not affect any order which is made. I think this is an appropriate case for this Court to refrain from determining the balance of the submissions sought to be advanced by the appellant.

Orders

1. Appropriately, the appellant did not seek any order for costs. I propose the following orders:
2. Appeal allowed.
3. Set aside the orders made by the Land and Environment Court on 20 November 2018, and in lieu thereof, dismiss the application filed on 2 November 2018 for want of jurisdiction.
4. WHITE JA: I agree with Leeming JA.

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: 25 July 2019