Smith v Wyong Shire Council

LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT LEC 40034/01 FILE NUMBER(S) : LOWER COURT Bignold, J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41067/02

SPIGELMAN CJ SHELLER JA TOBIAS JA

Monday 22 December 2003 DARCY SMITH v WYONG SHIRE COUNCIL & ANOR Judgment 1 SPIGELMAN CJ: I have read the judgment of Tobias JA in draft. His Honour sets out the facts, issues, submissions and statutory provisions. Subject to the following, I agree generally with his Honour's reasons. I wish to state my own reasons on the issue of validity. 2 Amendment No 118 to Wyong Local Environmental Plan 1991 ("the Amendment") was made by the Minister under s70 of the Environmental Planning and Assessment Act 1979 ("the Act"). The Appellant challenges the validity of the exercise of that power. Two alternative, but interconnected, bases for challenging the validity of the Amendment have been advanced. 3 Each basis depends on a conclusion that the Amendment failed to comply with a Direction given by the Minister pursuant to s117(2). The parties accepted that the Direction in G9(iv)(a) of the General Directions, quoted by Tobias JA, was a "principle" within the meaning of s117(2)(a), which I set out below. 4 The Appellant submitted that each of the provisions of the Amendment which down-zoned Residential 2(d) land to Residential 2(c) (by the amended map) and imposed a height restriction (by new clauses 42B and 42C), was in contravention of this Direction, because the Direction stated that a draft Local Environmental Plan ("LEP") "shall not contain" a provision of that character. 5 For the reasons given by Tobias JA, this submission should be accepted. The Respondent did fail to comply with the Direction in the respects identified. 6 The correct approach to determining the issue posed for the Court is authoritatively established by the majority joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]: "[93] [The] … test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid." 7 The application of this test received elaboration in the joint judgment at [91]: "[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue." 8 The first breach relied upon is the failure to comply with a s117 Direction contrary to the provisions of s117(3) of the Act: "117(3) A public authority or person to whom a direction is given under subsection … (2) shall comply and is hereby empowered to comply, with the direction in accordance with the terms of the direction." 9 The second breach relied upon a failure to comply with s66(1)(b) which, relevantly, provides: "66(1) …. a council … shall … (b) publicly exhibit … … (ii) a copy of any … relevant direction under section 117, applying to the land to which the draft local environment plan is intended to apply, and (iii) if such a … direction does so apply - a statement to the effect that the … direction referred to in subparagraph (ii) substantially governs the content and operation of the draft local environmental plan and that any submission made pursuant to section 67 should be made having regard thereto, …" 10 The approach in Project Blue Sky must be applied to each of the two breaches contended for by the Appellant. 11 To understand my reasons, it is necessary to have in mind the full text of s117(2): "117(2) In addition to any direction which may be given under subsection (1), the Minister may direct a council: (a) to exercise its functions under Division 4 or 5 of Part 3 in relation to the preparation of a draft local environmental plan in accordance with such principles, not inconsistent with this Act, as are specified in the direction, and (b) without limiting paragraph (a), to include in a draft local environmental plan prepared by the council provisions which will achieve or give effect to such principles or such aims, objectives or policies, not inconsistent with this Act, as are specified in the direction."

Non-compliance with a s117 Direction 12 The first indication of the significance attached to non-compliance with a s117 Direction is found in the use of the words "shall comply" in s117(3). Furthermore, s9(2) of the Interpretation Act 1987 provides: "9(2) In any Act or instrument, the word 'shall', if used to impose a duty, indicates that the duty must be performed." 13 Like other provisions of the Interpretation Act, s9(2) operates subject to any contrary intention. Such a contrary intention may be discerned from the scope and purpose of the legislative scheme and the place of the particular provision that has been contravened in that scheme. Nevertheless, the use of mandatory language such as "shall" is an indicator supporting the Appellant's contentions in these proceedings. 14 When determining the significance to be attributed to a failure to observe a s117 Direction, it is pertinent to note one of the matters identified as an "object" of the Act: "5(b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State." 15 Section 117 serves this object by ensuring that, where a Minister has decided that a "principle" should be applied by all local councils in order to serve a broader policy objective, councils are obliged to comply with that decision. The possibility that conduct in breach will result in invalidity helps to ensure that the division of responsibility envisaged by s117 will be maintained. I will return to this consideration below. 16 These factors are all indicators that Parliament intended that conduct in breach would be invalid. 17 However, a number of the factors which the High Court identified in Project Blue Sky as pointing to the opposite conclusion are also present in the scheme of the Act. The determination of this issue must, of course, turn on the provisions of the specific legislation under consideration. Nevertheless, the reasoning in Project Blue Sky is indicative. 18 That case focused on s160 of the Broadcasting Services Act 1992 (Cth) which provided: "160. The ABA is to perform its functions in a manner consistent with: (a) the objects of this Act and the regulatory policy described in section 4; and (b) any general policies of the Government notified by the Minister under section 161; and (c) any directions given by the Minister in accordance with this Act; and (d) Australia's obligations under any convention to which Australia is a party or any agreement between Australia and a foreign country. 19 The joint judgment said: "[94] The fact that s 160 regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section." 20 Section 117 of the Act also appears to be best characterised as regulating the exercise of functions already conferred on a council. The applicability of a Direction under s117(2)(a) is, expressly, to require a council "to exercise its functions under Division 4 or 5 of Part 3" in a particular manner. 21 Furthermore, in Project Blue Sky, immediately after referring to the manner in which the structure of the section there under consideration "strongly indicates" that it was not intended to invalidate conduct in breach, the joint judgment said: "[95] That indication is reinforced by the nature of the obligations imposed by s 160. Not every obligation imposed by the section has a rule-like quality which can be easily identified and applied. Thus, s 160 requires the functions of the ABA to be performed in a manner consistent with: the objects of the Act and the regulatory policy described in s 4; any general policies of the Government notified by the Minister under s 161; any directions given by the Minister in accordance with the Act. In particular situations, it is almost certain that there will be room for widely differing opinions as to whether or not a particular function has been carried out in accordance with these policies or general directions. When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity." 22 Section 117 contains similarly amorphous terminology. A Direction under s117(2)(a) extends to "principles". However, the breadth of the concept of "principles" is emphasised in s117(2)(b) which refers to "provisions which … give effect to such principles" and, going beyond the terminology of the previous paragraph, extends to "or such aims, objectives or policies". To use the terminology from [95] of Project Blue Sky, such matters do not have a "rule-like quality which can be easily identified and applied". What constitutes 'compliance' with a "principle" is a matter on which there is, to again use the terminology of the joint judgment, "room for widely differing opinions". Furthermore, the identification of what "provisions … will achieve or give effect" to a principle, etc, is also inherently contestable. 23 The scope for differences of opinion is manifest in the detail of the wide ranging General Conditions issued under s117. Some use terminology such as "shall not substantially" alter or reduce (e.g. Direction G3(i), G10(i)). Other Directions require a council to "have regard to" certain documents (e.g. Direction G2). What constitutes compliance is not necessarily obvious. This is a strong indication against invalidity being an intended consequence of a breach. 24 After making observations about the content of treaty obligations, being the specific matter in issue in the case, the joint judgment in Project Blue Sky went on to state: "[97] Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act." 25 Their Honours referred to the formulation of this proposition by the Privy Council in Montreal Street Railway Co v Normandin [1917] AC 170 at 175: "When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control of those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." 26 In Project Blue Sky, the joint judgment identified the serious consequences that would arise if invalidity were to result from the failure on the part of the Australian Broadcasting Authority to perform its functions pursuant to the statutory directive to do so "in a manner consistent with" the matters identified in the provision there under consideration (see at [97]-[98]). The results of invalidity of the full range of provisions affected by the contravention of the statute must be considered. 27 Each legislative scheme must be separately assessed in this respect. 28 One aspect of the scheme of the Act, not present in the Broadcasting Services Act, is the restriction on the right to challenge validity found in s35 of the Act, which requires any such proceedings to be commenced with three months. This limits the adverse public consequences of the invalidity, at least by putting persons who seek to rely on an LEP on notice of the possibility of invalidity. 29 Nevertheless, allowing for delay in the conduct of proceedings, the adverse consequences for councils and property owners of not knowing, for any period of time, whether the whole, or part, of a Local Environmental Plan is in effect are clear. 30 In the present case, in my opinion, this aspect of the issue turns on whether invalidity is restricted to the particular non-compliance found to have occurred. If the consequence is to strike down the Amendment as a whole, by reason of the failure to comply with a specific s117 Direction then, in my opinion, Parliament would not have intended s117(3) non-compliance to have such a consequence. If, however, invalidity is limited to the particular respects in which an amendment has failed to comply with a Direction, the adverse consequences are more limited and the significance of this consideration is lower. 31 This is a matter that must be determined on a case by case basis. Issues of severance must focus on the LEP in order to determine whether the provisions propounded in non-compliance with a Direction are such as to pass the common law test for severability: "… there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to subject matter dealt with from what it would otherwise be".

( Harrington v Lowe (1996) 190 CLR 311 at 328; see also Olsen v City of Camberwell [1926] VLR 58 at 68; Dunkley v Evans [1981] 1 WLR 1522 at 1525; Director of Public Prosecutions v Hutchinson [1990] 2 AC 783 at 811, 813). See also s32 of the Interpretation Act 1987. 32 The failure to comply with the s117 Direction in the present case manifested itself in the re-zoning of the 2(d) land and the imposition of a height restriction on the land. This does not, it appears to me, raise an issue of power to make the instrument. (c/f Darling Casino v Minister for Planning and Sydney Harbour Casino Pty Ltd (1998) 86 LGERA 186 at 207; El Cheikh v Hurstville City Council (2002) 121 LGERA 293 at 302-3). 33 Furthermore, this does not appear to be a case in which it should be concluded that the specific respects in which there was non-compliance were an essential part of the overall LEP. (c/f Dunkerley v City of Nunawading (1957) VR 630 at 634; El Cheikh at 303). 34 Accordingly, severance is possible. 35 One aspect of the statutory scheme that indicates that invalidity is not intended is the fact that an LEP may be made which does not comply with a Direction. From s54 to s66, the scheme proceeds on the basis that a council will comply with a Direction. Section 67 permits public submissions which are not constrained in any way. Section 68 authorises a council, after considering submissions, to make alterations to the draft LEP as exhibited. Those alterations are not constrained by a s117 Direction. 36 The making of an alteration is not the performance of a "function under Division 4 or 5 of Part 3 in relation to the preparation of a draft local environment plan", within s117(2)(a). This conclusion has to be based on the construction of the word "preparation", i.e. the "preparation" ceases when the public exhibition occurs under s66. Accordingly, an "alteration" under s68 occurs beyond the stage of "preparation". 37 Subsequent sections proceed on the basis that the "draft" may not comply with a Direction. See s68(4)(d)(iii), by which a council must report to the Director-General on any inconsistency between the draft plan and any s117 Direction. This is reinforced by the obligation under s69(a) and (b) on the Director-General to report to the Minister on any such inconsistency, and whether it is justifiable in the circumstances. 38 It is also significant that the relevant obligation is created by the Minister and not by legislation or delegated legislation. This is the same officer who ultimately determines whether a plan should be made and who has the option of deciding not to proceed with the plan (s70(1)(c)). The ability to regulate a failure to comply with s117(3) is in the same hands as the person, or his or her predecessor, who made the Direction. A Minister may withdraw a direction at any time. Furthermore, as noted above, the Minister may decide to make a plan which is inconsistent with a Direction. 39 It is, in my opinion, unlikely that Parliament intended that a failure to comply with a Direction results in invalidity, when the person who made the Direction is in a position to determine the fate of the non-complying conduct. 40 The final relevant consideration is to determine whether invalidity of non-complying conduct is necessary or desirable to ensure compliance. 41 As McHugh JA (as his Honour then was) said in Woods v Bate (1987) 7 NSWLR 560 at 567, in reliance on the line of authority in this Court expressly approved in Project Blue Sky at [93]: "In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition. [References omitted] Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice: cf Hatton v Beaumont [1977] 2 NSWLR 211 at 226 per Mahoney JA." 42 In Hatton v Beaumont [1977] 2 NSWLR 211 at 266, Mahoney JA said: "In assessing the significance of the particular provision to the attainment of the general object of the legislation, it is, in my opinion, important to bear in mind the effect of determining that the provision is mandatory. This, in general, will be that non-compliance with the provision will result in the 'total failure': Howard v Bodington [(1877) 2 P.D. 203 at 210]; of anything sought to be done under the legislation, and of any rights which otherwise would flow from it. And this will be so, whatever be the circumstances of the non-compliance and whatever, in the particular case, be the injustice to flow from it. There will, no doubt, be cases in which such a severe sanction will be necessary or appropriate to the attaining of the general object to be secured by the Act, … But the rigidity of the operation of a provision, if mandatory, and the fact that its consequences will flow regardless of the merits of the individual case, must, in my opinion, be carefully weighed. Before a provision is held mandatory, a court should be clearly satisfied that the part played by the particular provision in the attainment of the general object intended to be secured by the legislation is such that it is necessary or appropriate to visit non-compliance with consequences of that kind." 43 A failure to comply with a Direction that a council should prepare local environmental plans in a particular way may cover a wide range of defaults. Such failures may be major or minor, deliberate or inadvertent, fundamental or marginal. Indeed, in the present case, the failure appears to have arisen from an error of interpretation as to whether "any land" involved each parcel of land, a matter on which reasonable minds may differ. Furthermore, the failure meant that certain specific areas of land were down-zoned, contrary to the policy reflected in the Direction, in a context where the Amendment, considered as a whole, implemented the policy behind the Direction by increasing the permitted densities in the LEP area to a substantial degree. 44 Invalidity, however, applies, to use McHugh JA's formulation in Woods v Bate "irrespective of the circumstances" or, to use Mahoney JA's formulation in Hatton v Beaumont, "regardless of the merits of the individual case". 45 The purpose of the scheme of s117 Directions is to ensure that the policies reflected in the "principles" contained in a Direction, or in the "provisions" to give effect to such "principles, aims, objectives or policies", are in fact implemented by councils, at the stage before public exhibition. I do not doubt that councils will, generally, comply with Directions. I do not, given the relationship in this State between the Minister and councils, believe that the threat of invalidating a council LEP is required to ensure that councils are deterred from non-compliance. To use McHugh JA's formulation from Woods v Bate, this is not a case in which "the purpose of a provision can only be achieved by invalidating the result". 46 Weighing these conflicting considerations, I have come to the conclusion that it was not a purpose of the Act that non-compliance with a s117 Direction should result in invalidity. The factors suggesting it was not preponderate to a significant degree.

The Public Exhibition Breach 47 Sub-paragraphs (ii) and (iii) of para 66(1)(b) of the Act, set out above, contain two interrelated obligations. Sub-paragraph (ii) requires public exhibition of all s117 Directions "applying to the land". Sub-paragraph (iii) requires the publication of a statement to the effect that a s117 Direction "substantially governs the content and operation of the draft local environmental plan". When sub-paragraph (iii) goes on to refer to submissions being made "having regard thereto", the word "thereto" is a reference to the s117 Direction rather than to the "statement". 48 Section 66(1)(b) proceeds on the assumption that a council will comply with a s117 Direction. Nevertheless, its purpose and effect is to direct the attention of members of the public, who may wish to make submissions, to the content of a Direction and, of course, to the other matters to which s66(1)(b)(ii) applies, i.e. any applicable State Environmental Planning Policy or Regional Environmental Plan. 49 Whilst assuming that the council has complied with a s117 Direction when promulgating the draft LEP, s66(1)(b) is directed to ensure that public submissions are informed by the relevant applicable documents, in the same way and for the same purpose that a council is obliged to publicly exhibit a copy of any environmental study and the plan itself pursuant to s66(1)(b)(i). 50 Public submissions may wish to advocate the application of, relevantly, a s117 Direction in accordance with its terms or to criticise its application. It is apparent that the very existence of a policy or, relevantly, a "principle" identified pursuant to s117(2), will play a role in the subsequent consideration of the draft LEP prior to its final promulgation as an LEP. 51 The permissible range of matters that could be, and indeed are, the subject matter of State Environment Planning Policies, Regional Environmental Plans and s117 Directions is very wide. I would have no difficulty in concluding, for that reason, that it was not a purpose of the legislation to attend with invalidity the failure by the council to publicly exhibit every such instrument "applying to the land" in the broadest sense of those words. 52 Far from serving the purpose of public participation in the planning process, such participation would be rendered much more difficult if a council had to exhibit an undifferentiated mass of instruments merely because they "apply to the land". SEPPs and the General Directions "apply" to all land in the State. Their number and size is unrestricted by the statute and grows year by year. Members of the public concerned to participate in the process would drown in a sea of irrelevant information. Indeed, nothing is more calculated to undermine the purpose of public exhibition than excessive documentation. 53 The words "applying to the land" must be read down. This is a frequent task of statutory construction. (See Stradling v Morgan (1560) 1 Plowden 199 at 204; 75 ER 305 at 312 and the other cases discussed in R v Young (1999) 46 NSWLR 681 at [25]-[31]). The clue to reading down these general words is found in the reference to "substantially governs the content and operation of the draft local environmental plan". 54 It is significant that both sub-paragraphs 66(1)(b)(ii) and (iii) use the word "apply" in the same way: "applying to the land" in (ii) and "if such a policy, plan or direction does so apply" in (iii). There is no purpose to be served by the statement asserting that an instrument "substantially governs" the draft LEP if every instrument which "applies", with whatever level of significance, has been exhibited. It is only if the obligation to exhibit is read down to encompass only those instruments that "substantially govern the content and operation" of the LEP, that the statement serves the purpose of assisting public participation in the planning process. 55 For the reasons given by Tobias JA, Direction G9(iv)(a) did "substantially govern" the content of the draft LEP in important respects. Accordingly, the Respondent did contravene its obligation under s66(1)(b)(ii) to publicly exhibit a "relevant direction under section 117". Does this failure lead to the invalidity of the Amendment? 56 Like s117(3), considered above, the obligation is expressed in mandatory terms: "shall … publicly exhibit". See s9(2) of the Interpretation Act 1987 set out above. 57 It is pertinent to note that one of the "objects" of the Act is: "5(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment." 58 The significance of the public consultation process is manifest in the obligation on the council, in its report to the Director-General, and on the Director-General, in his or her report to the Minister, to state that the provisions of s66 and s67 relating to public involvement have been complied with. 59 For the reasons I have expressed elsewhere, the detailed scheme of consultation and public exhibition indicates the significance attached by Parliament to such public involvement in order to ensure the integrity of the process of formulating local environmental plans. (See Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at [37]-[38].) This consideration is entitled to weight when determining whether a failure to exhibit should result in invalidity. 60 These are all indicators that Parliament intended that conduct in breach would be invalid. 61 Many of the considerations to which weight was given in Project Blue Sky, which I have set out above in relation to the obligation to comply with s117(3), are not present here. · The obligation is a 'preliminary to the exercise of a function' rather than 'regulating the exercise of a function already conferred' (Project Blue Sky at [94]). (I set aside the word "essential" before "preliminary" in the joint judgment because it suggests the conclusion as part of the test). · The obligation is to exhibit a Direction applying to the land, which is a matter that "can be easily identified and applied" (Project Blue Sky at [95]). As read down to encompass only such Directions as "substantially" govern' the draft LEP, a judgement is required. However, this process does not provide the "room for widely differing opinions" of the scope considered above with respect to s117(3). The terminology does have, in my opinion, a "rule like quality". · There is nothing in the legislative scheme which indicates that a plan may be made after non-compliance with s66(1)(b). (Compare the above analysis on non-compliance with s117(3)). · The obligation is imposed by the Act. It is not an obligation created by the Minister, being the same officer who finally makes the plan. · Unlike a Direction, the content of the obligation cannot be varied by Ministerial act. 62 Some of the factors do tend against invalidity. There is public inconvenience associated with invalidity and it is substantial. Nevertheless, it is limited by my conclusion that severance is possible. The final factor considered above in relation to s117(3) was whether invalidity is necessary or desirable to ensure compliance. I do not see that that is the case with respect to s66(1)(b) either. 63 In my view, the balancing of the factors - particularly the significance of the public consultation process - leads to a different result in this respect. Invalidity was a purpose of the legislative scheme with respect to a material breach of s66(1)(b). For the reasons given by Tobias JA, the breach here was material. 64 I agree with the orders proposed by Tobias JA. 65 SHELLER JA: I have had the benefit of reading in draft the reasons for judgment prepared by the Chief Justice and Tobias JA. Like their Honours, and for the reasons given by Tobias JA, I agree that the respondent Council failed to comply with Direction G9 given by the Minister pursuant to s117(2) of the Environmental Planning and Assessment Act 1979. However, like the Chief Justice, and for the reasons his Honour has given, I do not think this failure to comply spells the invalidity of Amendment No 118 of the Wyong Local Environmental Plan 1991. 66 Tobias JA has explained in detail why, in his opinion, for failure to comply with the public exhibition requirements of s66(1)(b) of the Act, Amendment No 118 should be declared invalid to the extent to which it purported to amend Wyong Local Environmental Plan 1991 by zoning as 2(c) (Medium Density Residential Zone) land located at The Entrance and Long Jetty which is zoned 2(d) (High Density Residential Zone) in the said Plan. I agree with his Honour's conclusions and the reasons for them. I agree with the orders his Honour proposes. 67 TOBIAS JA: On 15 March 2001, the appellant commenced Class 4 proceedings in the Land and Environment Court challenging the validity of Wyong Local Environmental Plan 1991 (Amendment No. 118) (the amending LEP). The amending LEP was made on 17 December 2000 by the second respondent, the Minister for Urban Affairs & Planning (the Minister), pursuant to s 70 of the Environmental Planning & Assessment Act 1979 (the Act). It was published in Government Gazette No. 168 on 22 December 2000 and took effect pursuant to s 34(5) of the Act on that date. 68 The application was heard by Bignold J who on 25 October 2002 dismissed the application with costs: (2002) 123 LGERA 141. That decision is the subject of the present appeal to this Court. In the course of the hearing, the appellant sought leave to argue a ground of invalidity not argued before the primary judge. It was contended that the amending LEP was invalid because the draft local environmental plan (the draft plan) prepared by the first respondent (the Council) pursuant to s 54 of the Act was itself invalid as it was prepared in disconformity with a relevant direction given by the Minister under s 117(2) of the Act by which the Council was bound.

The background facts 69 The appellant is the registered proprietor of land fronting Toowoon Bay Road and Kitchener Road, Long Jetty (the property), made up of 6 allotments, which he had amalgamated over a period of several years. Since 15 February 1991, the date upon which Wyong Local Environmental Plan (1991) (the 1991 LEP) was published in the Government Gazette and took effect, the property had been classified thereunder as within Zone No. 2(d) (High Density Residential Zone) (the 2(d) zone). 70 There were only two areas of land within The Entrance/Long Jetty zoned 2(d) under the 1991 LEP. The first was an area of land bordered by Toowoon Bay, Kitchener and Archibald Roads comprising approximately one half of the block bounded by those roads and Fraser Road, made up of approximately 16 allotments (Area A). The property comprised approximately one half of Area A. The second was an area generally bounded by Ocean Parade, Short Street, Fairport Avenue and Denning Street, comprising approximately 60 allotments (although some of these may, like the property, have been amalgamated into single holdings) (Area B). Area B was approximately 4 times the size of Area A. 71 The primary objective of the 2(d) zone under the 1991 LEP was: "to allow for high density residential development in suitable locations."

The 1991 LEP contained no relevant development standards applicable to land within the 2(d) zone. In particular, it contained neither density nor height restrictions for development within that zone. As the objectives of the zone indicated, it was intended for high-density residential development. Although clause 42C of the 1991 LEP referred to a Building Height Map which controlled the height of buildings within The Entrance town centre, that map did not apply to either Areas A or B. Although there was also a floor space ratio restriction with respect to a building erected in Zone 3(c) where not used for residential purposes, there was no such restriction with respect to residential development within or without the 3(c) zone. In particular, there was no such restriction within the 2(d) zone. Accordingly, the permissible residential density within that zone was at large and subject only to the merit considerations referred to in s 79C of the Act. 72 In May 2000, the appellant lodged with the Council a development application to construct a 14 storey residential flat development containing 199 apartments. That development significantly exceeded 12 metres in height (the maximum now permissible on the property under the amending LEP), but the appellant asserted that it was consistent with the requirements for (including the objectives of) the 2(d) zone as they were under the 1991 LEP (before it was amended by the amending LEP). 73 On 11 November 1998, the Council resolved, pursuant to s 54(1) of the Act, to prepare a draft local environmental plan for land at The Entrance. By December 1999, the Strategic Planning Department of the Council had prepared a document entitled "The Entrance Strategy". This document apparently followed the public exhibition in 1998 of The Entrance Precinct Study, the results of which were reported to the Council in November 1998. This study, I infer, was the genesis for the Council's resolution of 11 November 1998 to prepare the draft plan for The Entrance. The study contained a number of "broad strategy principles" including, so far as is presently relevant, the following: 1. The general philosophies of higher densities closer to services and facilities, and lower scale development closer to the water are to be adopted in the strategy. ……

15. Where land is zoned 2(d) permitting high density development but in locations considered unsuitable for high development (eg, properties fronting Kitchener Road at Toowoon Bay Road), controls are to be introduced on height and set-backs while retaining densities and access to views to encourage redevelopment in a form compatible with surrounding development." 74 Part 2 of "The Entrance Strategy" detailed the proposed planning controls for The Entrance, including the general planning principles which underpinned them. One of those principles related to Zone No. 2(c) (Residential Medium Density Zone) (the 2(c) zone), in which density and height bonuses for amalgamation of land parcels were offered, subject however to a general three storey height limit which could only be increased if the development site area exceeded 1800 square metres. Under the heading "Miscellaneous Rezonings" the following appeared: "b) Land bounded by Toowoon Bay Road, Kitchener Parade and Archibold Road (the DP Smith Holdings Timber and Hardware site) - This land is currently zoned Residential 2(d) which under the existing provisions is the highest density form of residential development and has no height limit. The surrounding land is zoned Residential 2(b) and 2(c) and is generally low density low scale development (primarily 1 and 2 storey). The draft local environmental plan intends to rezone this land to Residential 2(c), the same as the adjoining land but given the potential for amalgamation of lots, offer a 12 metre (four storey) height limit with bonus density provisions. This will keep development on the site consistent with the neighbourhood character while allowing views of the lake to be realised for the upper levels." 75 It should be noted that the above statement is not entirely accurate as the proposal in actual fact was to rezone to 2(c) all land formerly zoned 2(d) of The Entrance and not just the property of the appellant. The effect of this proposed "down zoning" was that Areas A and B would cease to be high-density zones and become medium-density zones, hence attracting height restrictions (described in the Council documents as "stringent") which had not previously applied. 76 Appendix 1 to The Entrance Strategy was draft Local Environmental Plan No. 118. An amended version of this draft was eventually adopted by the Council (being the draft plan) and submitted to the Department of Urban Affairs & Planning (the Department) pursuant to s 64 of the Act under cover of a letter dated 9 November 1999, with a request that the Director-General issue a certificate pursuant to s 65 to enable its public exhibition in accordance with s 66. This letter asserted that there was no inconsistency between the draft plan and any direction give by the Minister pursuant to s 117 of the Act. 77 The Director-General of the Department (by her authorised delegate) issued the necessary s 65 certificate on 12 April 2000. In a minute dated 7 April 2000, which recommended the issuing of the certificate, it was noted that the draft plan was not considered to be inconsistent with, inter alia, any s 117 direction. The draft plan was duly exhibited from 27 April 2000 to 8 June 2000. 78 In essence, the draft plan proposed the following:

a) the " upzoning " of significant areas of land previously zoned 2(a) and 2(b) under the 1991 LEP at The Entrance to 2(c) thus increasing the density of residential development permissible upon those lands;

b) the " downzoning " of Areas A and B from 2(d) to 2(c) thus reducing the density of residential development previously permissible upon those lands;

c) the introduction of a new clause 42B to apply, inter alia, to the 2(c) zone. This new clause imposed a general height restriction of 10 metres on sites having an area of up to 1800 m2. For sites with an area exceeding 1800 m2 , the maximum height in Area A identified on the Building Height Map referred to in the clause was to be 12 m and that within Area B was to be 18 m or 24 m, depending upon location. These new height restrictions would also have the effect of reducing the permissible density of residential development within those areas, compared with that permissible in the 2(d) zone under the 1991 LEP. 79 The only document publicly exhibited by the Council pursuant to s 66(1)(b) of the Act was the draft plan. There was not exhibited any direction given to the Council by the Minister pursuant to s 117(2) of the Act. However, there existed at all material times the following s 117 direction given by the Minister to all Councils (Direction G9): G9. Residential zones (i) Draft local environmental plans shall contain a requirement that residential development is not permitted until land is adequately serviced with water and sewerage (or arrangements satisfactory to the Council, or other appropriate authority, have been made to service it). (ii) Draft local environmental plans shall retain existing provisions enabling a dwelling house to be erected on an existing allotment. (iii) Provisions in environmental planning instruments relating to the maximum lot size for a dwelling house shall not be increased in draft local environmental plans. (iv) Draft local environmental plans which zone land for residential purposes: (a) shall not contain provisions which will result in a reduction of the permissible residential density on any land to which the plan applies; (b) shall in as much as is practicable and compatible with the environmental quality of the area, provide for a variety of housing forms and increase the permissible residential density on the land; and (c) shall not require development consent for the purpose of a dwelling house. (v) Draft local environmental plans shall not increase existing standards relating to residential flat development (except in rural regions, where justified by an environmental study). (vi) Draft local environmental plans in the Sydney region shall retain provisions to allow dual occupancy of dwelling houses; in other regions draft local environmental plans may include such provisions. 80 Of particular relevance to the issues litigated in this appeal is clause (iv)(a) of Direction G9. It was submitted by the appellant that as the draft plan contained provisions which would result in a reduction of the permissible residential density in Areas A and B, there was an obligation on the Council imposed by s 66(1)(b)(ii) of the Act to publicly exhibit that direction together with a statement to the effect of that referred to in s 66(1)(b)(iii). Its failure to do so resulted, so it was submitted, in the amending LEP being invalidly made by the Minister. 81 The Strategic Planning Department of the Council reported on the public exhibition of the draft plan in a report dated 9 August 2000. It referred to the appellant's development application for the property and to his submission that the draft plan was inconsistent with Direction G9. However, the submission was dismissed on the basis that the direction only placed restrictions on land not previously zoned residential, so that as the property was already so zoned, the direction had no application.

82 Under cover of a letter dated 16 August 2000, the Council submitted the draft plan to the Director-General pursuant to s 68(4) of the Act. That letter affirmed the Council's previous assertions to the Department that there was no inconsistency between the draft plan and any s 117 direction and, in particular, with Direction G9(v) - there was no reference to G9(iv)(a). However, it went on to note the proposed down-zoning of the land zoned 2(d) under the 1991 LEP to 2(c) and the introduction of a height limit on that land where none had previously applied. The letter then asserted that if the introduction of these new controls was interpreted by the Department as an inconsistency with Direction G9(v), such inconsistency was justified for the reasons then set out. 83 On 12 December 2000, the Director-General (by her authorised delegate) submitted to the Minister the report required by s 69 of the Act. It recommended that the Minister make the plan as submitted by the Council, with certain immaterial alterations. It also stated, under the heading "Consistency with State Policies, Environmental Plans and section 117 Directions" that: "There are no relevant REP's or s 117 Directions which affect the draft LEP". 84 As I have already noted, the Minister made the amending LEP pursuant to s 70 of the Act on 17 December 2000.

The proceedings before the primary judge 85 The primary thrust of the appellant's case before the primary judge was the alleged breach by the Council of s 66(1)(b) of the Act. Section 66 relevantly provides: "(1) Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall, after complying with any condition subject to which the certificate was granted and subject to the regulations: (a) give public notice, in a form and manner determined by the council, of the place at which, the dates on which, and the times during which, the environmental study prepared by the council under section 57 of the land to which the draft local environmental plan applies and the draft local environmental plan may be inspected by the public, (b) publicly exhibit at the place, on the dates and during the times set out in the notice: (i) a copy of that environmental study and draft local environmental plan, (ii) a copy of any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft local environmental plan is intended to apply, and (iii) if such a policy, plan or direction does so apply - statement to the effect that the policy, plan or direction referred to in subparagraph (ii) substantially governs the content and operation of the draft local environmental plan and that any submission made pursuant to section 67 should be made having regard thereto, (c) specify, in the notice, the period (being a period which is or includes the period referred to in subsection (2)) during which submissions may be made to the council in accordance with section 67, and (d) publicly exhibit such other matters as it considers appropriate or necessary to better enable the draft plan and its implications to be understood. (2) A draft local environmental plan shall be publicly exhibited for a period being not less than the prescribed period." 86 The first argument advanced before the primary judge was that the Council had contravened s66(1)(b) in failing to comply with the public exhibition requirements contained in that provision. In particular, the Council was said to have contravened s 66(1)(b)(ii) by failing to publicly exhibit copies of State Environmental Planning Policies Nos. 1 and 6 and Direction G9 and s66(1)(b)(iii) by failing to exhibit a statement to the effect that Direction G9 governed the content and operation of any local environmental plans. 87 The consequent issue, which arose before both the primary judge and this Court, was whether, assuming that there had been contravention of s 66(1)(b) as asserted, the amending local environmental plan was rendered invalid as a consequence thereof. It is necessary to record the primary judge's reasoning with respect to both these issues before turning to the arguments on the appeal. 88 It was submitted by the Council before the primary judge (and later before this Court) that the meaning of the expression "any State environmental planning policy, regional environmental plan or relevant direction under section 117 applying to land to which the draft local environmental plan is intended to apply" in s 66(1)(b)(ii) was contextually governed by the content and operation of s 66(1)(b)(iii), so that the obligation to publicly exhibit under the former provision applied only to a policy, plan or direction that "substantially governs the content and operation of the draft local environmental plan". 89 Accordingly, the Council argued that Direction G9 (iv) did not "substantially govern" the content and operation of the draft plan because it did not zone any land for residential purposes, as all of the land to which that plan was intended to apply had already been zoned as such under the 1991 LEP. 90 Further to this point, the Council argued that the public exhibition of a statement to the effect that Direction G9(iv) "substantially governs the content and operation of the draft local environmental plan" would be factually incorrect and therefore misleading to the public, as it would be inconsistent with the operation and effect of the direction. Such an absurd result would be avoided by the adoption of a construction of s 66(1)(b) which harmonised sub-paragraphs (ii) and (iii) in the manner advanced. In other words, the Council was obliged to publicly exhibit only those policies, plans and directions which were consistent with the content and operation of the draft plan or with which the draft plan conformed. 91 The primary judge accepted the Council's argument in the following terms: "61. In my judgment, the Council's variant argument as to the proper construction of s 66(1)(b)(ii) and (iii) is correct in that those provisions onl y attract a State Policy, Regional Plan or s 117 Direction which applies to the land to which the draft local environmental plan is intended to apply in the sense that it applies in such a manner "as to substantially govern the content and operation of the draft local environmental plan". In other words , unless the policy, plan or direction ' substantially governs the content and operation of the draft local environmental plan ' it does not relevantly apply to the land to which the draft local environmental plan is intended to apply." 92 Having found that such a construction would harmonise the cumulative obligations imposed by s 66(1)(b)(ii) and (iii) respectively and having emphasised that it was the "content" of the draft plan that must be considered in relation to the content of any potentially applicable s 117 direction, the primary judge concluded as follows: "63. However, where as in the present case, the content of the draft Amending LEP is contrary to, or in conflict with, or otherwise divergent from, the content of any State Policy, Regional Plan or s 117 Direction, then the obligation to publicly exhibit that material does not arise, because it can be concluded that that material does not apply in the relevant sense to the land to which the draft Amending LEP is intended to apply." (original emphasis) 93 After referring to s 74(1) of the Act, which expressly authorises a subsequent environmental planning instrument to amend "in whole or in part" an existing environmental planning instrument "whether of the same or a different type", the primary judge added this observation: "64. Lest it be thought that this construction at first blush allows the ' tail to wag the dog ', I would emphasise the fact that the Act, s 74(1) expressly authorises a subsequent environmental planning instrument to amend 'in whole or in part' an existing environmental planning instrument 'whether of the same or a different type'. Thus, because of the existence of s 74(1), it is legally possible for a subsequent local environmental plan to amend a State Environmental Planning Policy or a Regional Environmental Plan. The possibility of this result expressly acknowledged by the Act , s 36 which provides relevant rules of construction to resolve inconsistency between various environmental planning instruments. Accordingly once it is appreciated that the Act does not create an inflexible hierarchy of environmental planning instruments, it is apparent that the statutory phrase ' substantially governs the content and operation of the draft local environmental plan ' appearing in s 66(1)(b)(iii) is referring to comparability of content of the draft plan and the other relevant existing instruments, but significantly reflecting a volitional result and not a compulsory one (such as may operate in an hierarchical system of planning instruments)." (original emphasis) 94 The primary judge thus held that there was in fact no relevant breach by the Council of the obligations imposed on it by s 66(1)(b) of the Act. He then proceeded to consider whether, in the event that he had found the Council guilty of such breaches, the amending LEP would be invalid as a consequence thereof. In this respect his Honour applied his own decision in Jessop v WRA Willcocks Pty Limited (1998) NSWLEC 106. Having found in that case that there had been no relevant breach of duty by the Council in relation to s 66(1)(b), his Honour observed: "Even if I had otherwise found, on the facts, that there was a failure on the part of the 2nd Respondent to exhibit at the Laurieton office all the required supporting material, I would not have held the failure to be fatal so as to invalidate the Amendment No 4 Plan. There are a number of reasons for so concluding. Firstly I would not regard a failure to comply with s 66(1)(b)(ii) as involving a breach of the overall duty imposed by s 66(1)(b). As the heading to the section states the section is concerned with the public exhibition of the draft local environmental plan . This is obviously the principal object of the section and the material referred to in s 66(1)(b)(ii) is clearly ancillary and subsidiary material. In these circumstances as a matter of construction I would not interpret the section in a manner that visited non-compliance with s 66(1)(b)(ii) with invalidity. Alternatively I would regard the exhibition of the material referred to in s 66(10)(b)(i) even if unaccompanied by relevant material referred to in s 66(1)(b)(ii) as a substantial compliance with the duty imposed by the section, particularly in a case such as the present, where there is unchallenged evidence (which I accept) that there was total compliance in respect of s 66 in the exhibition of materials at the 2nd Respondent's principal offices in Port Macquarie." (original emphasis) 95 The primary judge then referred to some obiter remarks of Stein J (then a judge of the Land and Environment Court) in Monaro Acclimatisation Society & Anor v The Minister (1989) NSWLEC 13, where his Honour indicated that he was not convinced that, assuming a failure to exhibit a particular s 117 direction, such a breach would necessarily lead to invalidity. He agreed with the conclusion of the primary judge in Jessop that the materials that had not been exhibited were "clearly ancillary and subsidiary". 96 Reference was then made to passages from the judgment of Cripps J in Asquith v The Minister for Planning (1989) NSWLEC 104 where his Honour, by analogy with the reasoning of the primary judge in Jessop, considered that the duty to consult imposed by s 62 of the Act was ancillary to the overall duty imposed by Division 4 of Part 3 of the Act so that it could not be assumed that the legislature intended that a failure by a council to notify another council pursuant to that provision would "irretrievably taint the whole process". 97 After referring to a further decision of his own in Premier State Developments Pty Limited v North Sydney Council (1999) 140 LGERA 215 in which he followed his own decision in Jessop, the primary judge concluded in the following terms: "82. It will thus be seen that the state of existing authority in this Court is that the Court has twice held that the failure to publicly exhibit, in conjunction with the public exhibition of a draft local environmental plan pursuant to s 66(1)(b), an applicable state environmental planning policy or regional environmental plan or a s 117 Direction does not invalidate either the public exhibition of the draft local environmental plan or the subsequent making by the Minister of the local environmental plan ( Asquith and Premier State Developments ) and has twice expressed the obiter opinion that the failure to publicly exhibit the materials referred to in s 66(1)(b)(ii) and (iii) does not invalidate either the public exhibition of the draft local environmental plan or the subsequent making up by the Minister of the local environmental plan ( Jessop and Monaro Acclimatisation Society )." 98 The primary judge noted that there had been only one decision of the Land and Environment Court which had questioned "the settled state of authority", namely John Brown Lenton & Co Pty Limited v The Minister (1999) 106 LGERA 150, where Cowdroy J had held that a failure by a council in preparing a draft local environmental plan to consult as required by s 62 of the Act invalidated the plan. In so deciding, his Honour suggested that the decision of Cripps J in Asquith could not be regarded as current law in view of the decision of the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 and that of this Court in Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78. 99 It will be necessary to return to these authorities, but for present purposes it suffices to observe that the primary judge considered that the decision in Project Blue Sky in fact confirmed the correctness of Cripps J's decision and reasoning in Asquith. To his Honour's mind, neither the decision nor the reasoning in Vanmeld cast any doubt upon the correctness of the decision in Asquith. Accordingly, he held (at [96]) that the non-exhibition of Direction G9 in conjunction with the public exhibition of the draft plan did not invalidate the amending LEP subsequently made by the Minister. The appellant's submissions on appeal 100 The arguments advanced by the appellant before this Court fell into two broad categories. The first, which was not argued in the Court below (see [67] above), was that the Council had no power to prepare and exhibit the draft plan as it was in disconformity with Direction G9. The second alternative argument, which was dealt with by the primary judge, was that if the Council did have the power to prepare the draft plan, it breached the public exhibition requirements contained in s66(1)(b)(ii) and (iii) with the consequence that the amending LEP should be declared invalid.

Did the Council have power to prepare the draft plan? 101 The first ground contained in the appellant's Notice of Appeal filed on 14 February 2003 was that the primary judge erred in finding that the Council complied with the statutory obligations imposed upon it by, inter alia, s 117 of the Act. During the course of his oral submissions, the appellant clarified that ground by indicating that he wished to argue that the Council had no power to prepare a draft local environmental plan which was inconsistent with a relevant s 117 direction with the consequence that the amending LEP made by the Minister was in itself invalid as it was sourced in a draft plan which the Council had no power to prepare. 102 The appellant accepted that he needed the leave of the Court to advance this new ground of invalidity. The Council did not, in terms, oppose the grant of leave provided it was given sufficient time to prepare and file written submissions to answer the appellant's contentions. It was not, however, appropriate for the Court to grant leave at the time of hearing as this new ground was not covered by the appellant's written submissions which had been filed and, presumably, served upon the Minister and hence the Minister had not been informed that it was to be advanced. Although the Minister did not appear before the primary judge or before this Court and therefore took no part in the hearing of the issues that were contested, it was not appropriate for leave to be granted for the appellant to raise this new ground without the Minister being informed and having the opportunity to make submissions with respect thereto. Accordingly, appropriate directions were given at the conclusion of the hearing of the appeal to accommodate the situation. 103 Written submissions were received from both the Council and the Minister and replied to by the appellant. None of the parties sought a further oral hearing. Only the Minister contended that leave should not be granted to the appellant to pursue this new ground. The Court was referred to the usual authorities: Coulter v Holcombe (1986) 162 CLR 1 at 8; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSW LR 631 at 646-647; Collings Construction Co Pty Ltd v ACCC (1998) 43 NSWLR 131 at 139; Eggins v Broomeshead Bowling and Recreational Club Limited (1986) 5 NSW LR 521 at 524-5; The Owners - Strata Plan No 13218 v Woollahra Municipal Council (2002) 117 LGERA 117. It should be noted that the Minister conceded in his written submissions that no prejudice was suffered in this case and that the question raised was purely a question of law. Although I appreciate the force of the Minister's submissions on the issue of leave, I am of the opinion that in the particular circumstances of this case leave should be granted. The issue is of significance and the parties have made extensive written submissions. Its resolution involves questions of the construction of the Act which, in my opinion, this Court should determine. 104 Before dealing with the substantive submissions on this issue, it is to be observed that the issue raised by the appellant's first ground of appeal is predicated upon the assumption that there was in fact an inconsistency between the draft plan as prepared and exhibited by the Council and Direction G9(iv)(a). The primary judge held that there was no breach by the draft plan of the proscription in that direction. He so found on the basis that the proscription, properly construed, was directed to the: " overall effect on permissible residential densities of residentially zoned lands, considered globally and is not directed to individual parcels of land or lots so zoned." [137] 105 In my opinion, this construction overlooks the plain wording of Direction G9(iv)(a), which proscribes a reduction of the permissible residential density "on any land to which the plan applies" (my emphasis). The meaning of the direction is clear from its language. The primary judge's construction of the direction is, with respect, untenable. Furthermore, his Honour's finding in [63] of his judgment (which I have recorded in [28] above), appears to amount to a finding that the draft plan was, in fact "contrary to, or in conflict with, or otherwise divergent from the content of any….s 117 Direction". Having concluded, therefore, that there was a clear inconsistency between Direction G9(4)(a) and the draft plan, I now turn to the submissions of substance on this issue. 106 The appellant submitted that the Council had a statutory obligation to comply with Direction G9 in its preparation of the draft plan perforce of s 117(3). That provision was in the following terms (so far as is relevant): "A public authority…to whom a direction is given under sub-section…(2) shall comply, and is hereby empowered to comply, with the direction in accordance with the terms of the direction" 107 Accordingly, so it was submitted, the only draft local environmental plan which could be publicly exhibited pursuant to s 66(1)(b)(i) was a draft plan consistent with Direction G9. As the draft plan in question was inconsistent with Direction G9, it followed that its exhibition was in breach of s 66(1)(b)(i) independently of any breach of s 66(1)(b)(ii) and (iii). 108 The appellant's submissions appeared to go even further, asserting that there was no power in the Minister to make a local environmental plan pursuant to s 70 of the Act which was inconsistent with a s 117 direction which otherwise applied to the land to which the plan was intended to apply: but this cannot be so for the reasons to which I shall refer below. 109 The council and the Minister's submissions on this issue can be summarised thus:

(a) There are a number of structural and textural indicators in the Act that a Ministerial direction under s 117 (regardless of its terms) is not intended by the legislature to preclude the preparation of a draft local environmental plan which is inconsistent with such a direction. Reference was made to ss 5(b), 13(2), 24, 26, 36, 54, 55, 65 (2), 68(4)(d)(iii), 69(a) and (b), 70, 76A, 76B and 79C. In particular, the power with which a council is vested by s 54(5) is unconditional and cannot be restricted by a s 117(2)(a) direction;

(b) As originally enacted in 1979, the Act clearly contemplated that a council would be empowered to prepare a draft local environmental plan which was inconsistent with an applicable s 117 direction and the repeal of these provisions by the Environmental Planning & Assessment (Amendment) Act 1985 (the 1985 Act) did not change or purport to change this position;

(c) In accordance with the principles expounded in the majority judgment in Project Blue Sky at 381-382, the " harmonious goals " of the Act, as reflected in s 5, could only be promoted by a construction of s 54(5) which empowered a council to prepare a draft local environment plan which was inconsistent with an otherwise applicable s 117 direction;

(d) Alternatively, s 117 in terms does not purport to preclude a Council from preparing a draft local environmental plan which is inconsistent with a direction given pursuant to s 117(2)(a) and should not be so construed

(e) Alternatively, the facts established that both the Director-General and the Minister each waived any non-compliance with Direction G9;

(f) In any event, there was nothing in the Act to indicate that the legislature intended that a draft local environmental plan prepared in breach of s 117(3) would have the consequence of invalidating the plan as made by the Minister under s 70. 110 Before I deal with the Council's submissions on this matter, it should be noted that it submitted on a number of occasions that there was nothing in the Act, including s 117, to indicate that it was intended by the legislature that a Ministerial direction under s 117 could preclude the preparation of a draft local environmental plan pursuant to s 54. This is literally correct; however, it is beside the point. The issue is not whether s 117(3) precludes a council from preparing a draft local environmental plan, but whether in preparing such a plan pursuant to s 54(5) a council is required not only to consider but also to comply with any proscription contained in the relevant direction. 111 Section 117(2)(a) of the Act is the relevant power authorising Direction G9. It provides that: "(2)…the Minister may direct a council: (a) to exercise its functions under Division 4…of Part 3 in relation to the preparation of a draft local environmental plan in accordance with such principles, not inconsistent with this Act, as are specified in the direction" 112 It is common ground that Direction G9 is a direction validly given by the Minister pursuant to the above provision. Although it is framed in terms of a direction to all council, it is to be noted that s 117(2) contemplates a direction to "a council" in respect of the exercise of "its" functions under Division 4 of Part 3, one of those functions being the preparation of a draft local environmental plan pursuant to s 54. Accordingly, a direction given by the Minister pursuant to s 117(2)(a) is one which is intended to facilitate, rather than preclude, the preparation of a draft local environmental plan. 113 I have referred in [109(a)] to the provisions of the Act upon which the Council and the Minister rely to support the proposition that a council's power to prepare a draft local environmental plan pursuant to s 54 is unrestrained by any direction given pursuant to s 117(2)(a). I do not consider it necessary to refer to all these provisions, but I will make mention of the following. Reliance was placed upon s 5(b), which states that one of the objects of the Act is to promote the sharing of the responsibility for environmental planning between different levels of government in the State. It was suggested that this object would be defeated if the power of a council to dictate the provisions of a draft local environmental plan which it was empowered to prepare was constrained by a Ministerial direction under s 117. In my respectful opinion, there is no basis for this contention. The Minister's responsibilities for environmental planning under the Act expressly include the giving of directions to councils pursuant to s 117(2)(a) which set out the principles in accordance with which they are required to exercise their statutory functions in the preparation of a draft local environmental plan. 114 Allied with this submission was one based upon the provisions of s 36(1) which provides that in the event of an inconsistency between environmental planning instruments, there is no general presumption that an environmental planning instrument of one kind prevails over that of another to the extent of the inconsistency. This provision is, however, subject to ss 36(2) and (3), which provide that a State environmental planning policy and a regional environmental plan will prevail over a local environmental plan where the policy or regional plan so expressly provides. 115 No doubt s 36(1) is consistent with the object set forth in s 5(b). But it has no application to the preparation stage of environmental planning instruments and only operates when such an instrument is being made by the Minister and duly gazetted. I can see no lack of uniformity in terms of the goals or objects to be achieved by the Act, including that contemplated by s 36(1), in construing ss 54(5) and 117(2) and (3) in a manner which constrains a council from preparing a draft local environmental plan pursuant to s 54(5) otherwise than in conformity with an applicable s 117 direction. 116 Such a construction is, is in my view, consistent with the object set forth in s 5(a)(ii), which calls for "the promotion and co-ordination of the orderly and economic use and development of land". In my opinion, it cannot be gainsaid that that object is more likely to be fulfilled if a draft local environmental plan is required to be prepared in accordance with the principles of environmental planning which are the subject of a Ministerial direction. Although only a council can prepare a draft local environmental plan, it is not self-evident as to why, as the Council submits, it must be able to prepare a plan at the s 54(5) stage of the statutory process which is inconsistent, inter alia, with a s 117 direction otherwise applicable. In my opinion, there is nothing in the Act which so dictates. 117 Reliance was also placed upon s 55(3) of the Act. Section 55(1) empowers the Minister, inter alia, to direct a council, or two or more councils jointly, to perform any function conferred or imposed under s 54. Section 55(3) provides:

"(3) Nothing in this section affects the operation of s 117" 118 It was submitted that s 54 contains no equivalent to s 55(3). Its presence in s 55 and absence from s 54 suggests, so it was submitted, that a s 117 direction has no "operation" on a council acting pursuant to s 54, as distinct from one acting under a Ministerial direction pursuant to s 55. It was further submitted that s 55(3) makes it plain that the power of the Minister to make a direction under s 55(1) does not restrict the Minister's powers under s 117 and that it does not speak at all to the power of a council to prepare a draft plan. 119 With respect, I would reject these submissions. On its face, s 117(3) compels a council to comply with a direction given under s 117(2)(a). Prima facie, therefore, it binds a council in the exercise of its function under s 54(5) in preparing the draft local environmental plan which it has resolved to prepare under s 54(1). Section 55 concerns a situation where the Minister directs a council to, inter alia, perform its function to prepare a draft local environmental plan under s 54. Section 55(3) appears to have been inserted to ensure that s 55(1) could not be construed as a "waiver" by the Minister of an otherwise applicable s 117(2) direction. In other words, that provision makes it clear that where a council prepares a draft local environmental plan pursuant to s 54 only at the direction of the Minister, that direction does not affect the operation of s 117 in its application to the preparation of such a plan. The subsection thus emphasises the primacy of a direction given pursuant to s 117(2)(a) and the necessity for such a direction to be complied with irrespective of whether the council proceeds to prepare a draft plan pursuant to s 54(5) or 55(4). 120 Accordingly, the power of a council to prepare a draft local environmental plan pursuant to s 54(5) must be read as a power to prepare such a plan in accordance with any applicable s 117(2) direction. So much is mandated by s 117(3) and there is nothing in the provisions or structure of the Act upon which the Council and the Minister rely which, in my opinion, requires any alternate construction to be adopted. 121 As the Council and the Minister submit, ss 68(4)(d)(iii) and 69(a) and (b) assume that a draft local environmental plan may be inconsistent with, inter alia, a s 117 direction otherwise applicable, at least at the s 68(4) stage of the statutory process. Subject to one matter, the structure of Division 4 of Part 3 appears to be such that the first occasion upon which may arise any issue of inconsistency or disconformity with a s 117(2) direction is the time of the making of a submission under s 67. Although a council must publish a statement pursuant to s 66(1)(b)(iii) that any submission made must be done "having regard to" the restraint of a s 117(2) direction, there is nothing to prevent a submission from asserting that the restraint should not be observed. Where that occurs, a council may, in the course of considering the submission under s 68(3) and subject to the constraints referred to in Vanmeld at [38], [39] and [40], determine to make an alteration to a draft local environmental plan which does not conform with the restraint. It is to be noted that "any person" may make a submission pursuant to s 67, including an officer of the council or the councillors themselves. 122 This is the first point at which a council, in its submission to the Director-General, must state which directions under s 117 have been taken into consideration and must give details of any inconsistency between the draft local environmental plan and any such direction, as well as reasons justifying the inconsistency: s 68(4)(d)(ii) and (iii). No parallel provision is made in s 66(1)(b) for identifying any such inconsistency at the public exhibition stage. The contrast is marked. The Director-General, in turn, is required to advert to any such inconsistency in his or her report to the Minister under s 69. 123 However, there is in my opinion a situation where a draft local environmental plan which is inconsistent with a s 117(2) direction may be publicly exhibited. It involves the exercise by the Director-General of his or her power under s 65(2) to issue a certificate subject to a condition that the draft local environmental plan submitted by the council pursuant to s 64 be amended in a manner specified in the certificate before it is publicly exhibited in accordance with s 66. Given that the Director-General, in the exercise of his or her functions under the Act (which would include the issuing of a certificate under s 65), is subject to the control and direction of the Minister (s 13(2)), I see no reason why he or she could not subject a draft local environmental plan to a condition that it be amended in a manner which would result in the plan being inconsistent with a relevant s 117(2) direction. 124 The foregoing does not militate against the proposition that a draft local environmental plan which is prepared by a council pursuant to s 54(5) and submitted to the Director-General pursuant to s 64 is required to conform with such a direction. It is then a matter for the Director-General, possibly on the urgings of the relevant council, to require the draft local environmental plan to be amended in accordance with a condition imposed pursuant to s 65(2) before it is publicly exhibited. However, as the draft plan in the present case was prepared by the Council in a manner inconsistent with Direction G9, it follows that it was not a draft local environmental plan to which s 66(1)(b)(i) applied, with the consequence that the public exhibition process was infected by the exhibition of an invalidly prepared plan. 125 In [109(b)] I referred to the Act as originally enacted (the 1979 Act), which, so it was submitted, contemplated that a council was empowered to prepare a draft local environmental plan which was inconsistent with, inter alia, a relevant s 117 direction. In this respect, s 61(e) of the 1979 Act provided as follows: "In the preparation of a draft local environmental plan, the council shall - (e) ensure that the draft local environmental plan, and its aims, objectives, policies and strategies are not substantially inconsistent with any …relevant direction under s 117, which applies to the land to which the draft local environmental plan applies…" 126 Pursuant to s 64 of the 1979 Act, the draft local environmental plan so prepared was to be submitted by the Council to the Secretary of the Department together with a statement specifying, inter alia, the directions under s 117 which had been taken into consideration for the purposes of s 61(e) and giving details of any inconsistency between the draft local environmental plan and such directions. Section 65(2) then relevantly provided: "(2) Where the Director is of the opinion that the draft local environmental plan referred to in subsection (1) is inconsistent with a…relevant direction under s 117, the Director may cause to be issued to the council a certificate certifying that the inconsistency is, in his opinion, justifiable in the circumstances…" 127 In Geoffrey Twibill & Associates v Warringah Shire Council (1976) 51 LGRA 73, Perrignon J held that a certificate issued by the Director pursuant to s 65(2) would not operate to cure the invalidity of a draft plan which resulted from a failure to comply with s 61(e) upon the basis that the inconsistency referred to in s 65(2) was to be construed as an inconsistency which was not substantial within the meaning of s 61(e). The effect of this decision was that although a council was empowered to prepare a draft local environmental plan inconsistent with a relevant s 117 direction, it could not do so if the inconsistency was substantial. It would seem to follow logically from this decision that the reference to any inconsistency between a draft local environmental plan and a s 117 direction taken into consideration for the purposes of s 61(e) to be found in s 68(4)(d)(iii) and s 69(a) and (b) (which provisions remain in the Act) would need to be construed as excluding an inconsistency which was substantial; and this would be so notwithstanding that such an inconsistency could be justified. 128 Sections 61(e), 64(b) and (c) and 65(2) of the 1979 Act were repealed by the 1985 Act. In the explanatory note to the Environmental Planning & Assessment (Amendment) Bill 1985 (No 2) (the 1985 Bill), the provisions of the Schedule to the Bill which was to repeal the provisions referred to was said, inter alia, to remove: "the restriction that a council cannot prepare a draft local environmental plan unless it is not substantially inconsistent with any…relevant direction under s 117 of the Principal Act which applies to the land to which the draft local environmental plan applies"

For the sake of completeness, I should state that the Minister's second reading speech is silent on the reasons for the repeal of the provisions referred to. 129 The provision of the explanatory note to which I have referred may well be explicable by the legislative desire to reverse the effect of Twibill by permitting a draft local environmental plan which is not only inconsistent but also substantially inconsistent with a relevant s 117 direction. However, I am conscious that the note refers to the removal of that restriction upon a council's preparation of a draft local environmental plan. Although not referred to in the Council's or the Minister's submissions, I anticipate that this explanatory note would be relied upon to support the proposition that the purpose of the repeal of the provisions of the 1979 Act to which I have referred was to ensure that a council was empowered to prepare a draft local environmental plan which was substantially inconsistent with a relevant s 117 direction. 130 However, as Mason CJ, Wilson and Dawson JJ said in re Bolden; ex parte Beane (1987) 162 CLR 514 at 518, although the second reading speech of the Minister when introducing a bill is deserving of serious consideration, it is not determinative and is available only as an aid to interpretation. As their Honours said: "The words of a Minister must not be substituted for the text of the law…It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."

See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459 and R v Young (1999) 46 NSWLR 681 at 690-691 ([34-35]). 131 I have already determined that the effect of ss 117(2) and (3), on the construction of the Act as it now stands, was that the Council, when preparing the draft plan pursuant to s 54(5), was bound to prepare that plan in conformity with any direction given by the Minister pursuant to s 117(2) and, in particular, Direction G9. As I have said, I see nothing in either the structure or textual provisions of the Act to justify any other interpretation. In these circumstances, I am not prepared to allow that opinion to be negated by the explanatory note to the 1985 Bill to which I have referred. 132 Certainly, as the note contemplates, the effect of the repeal of the provisions to which it refers is that where inconsistency between a draft plan and a relevant s 117(2) direction is permissible, that inconsistency is no longer to be confined to one which is not substantial. Properly construed, s 65(2), s 68(4)(d)(iii) and s 69(a) and (b) of the Act contemplate inconsistencies which may be substantial. That was not the case before the 1985 Act. The specific reference in the explanatory note to the removal of the restriction that an inconsistency must not be substantial gives it work to do because it is entirely consistent with the text of the Act as it now stands. 133 Accordingly, in light of what I consider to be the clear structural scheme of Division 4 of Part 3, which permits a departure from conformity between a draft local environmental plan and a relevant s 117(2) direction only at the s 65(2) stage of the statutory process at the very earliest, I am not prepared to be overridden by an interpretation of an explanatory note which, in my view, is inconsistent with "the text of the law". The simple point is that the 1985 Act repealed provisions which clearly empowered a council to prepare a draft local environmental plan which was inconsistent with a relevant s 117(2) direction provided only that the inconsistency was not substantial. If the legislature had intended to retain that power but to extend it to substantial inconsistencies at the s 54(5) stage, then the mere repeal of the provisions referred to without more was, in my opinion, inadequate to achieve such an objective. 134 It was further submitted that the terms of s 117(2)(a), particularly when combined with s 118, were not consistent with an inference that the giving of a direction under that provision was intended to operate as a restraint on the power of a council to prepare or to commence the process of preparing a draft local environmental plan. However, the submission overlooks the terms of s 117(3). It is true that neither ss 117(2)(a) nor 117(3) are framed in terms of a prohibition but impose a positive obligation. That difference may be relevant (although I do not consider that it is) to whether a breach of s 117(3) is to be regarded as having the consequence that the offending act of the Council was intended by the legislature to be invalid. However, in my opinion, it does not touch the present issue as to the extent of the Council's power to prepare a draft local environmental plan which is inconsistent with such a direction. Furthermore, as I have already observed, these sections do not remove the power of a council to prepare a draft plan but merely require the power to be exercised in conformity with that direction. 135 I would therefore conclude that the preparation by the Council of the draft plan which it purported to exhibit pursuant to s 66(1)(b)(i) of the Act was beyond power. This being so, it follows that the amending LEP is invalid either in whole or in part. I shall deal with the question of severability below. Furthermore, in my opinion, s 66(1)(b)(i) must be construed as requiring the exhibition of a draft local environmental plan which the Council was empowered to prepare. It follows that the exhibition of the draft plan by the Council in the present case was a nullity in the sense that it was not an exhibition authorised by s 66(1)(b)(i). This point is not a strict application of Project Blue Sky. which is directed to whether an act which is performed in breach of a legislative provision should be regarded as invalid and of no effect. The present defect is more fundamental than that although I appreciate that it involved a breach of s 117(3). It also involved an act which was not an exercise of the power at all. 136 Nevertheless, the Council and the Minister advanced a number of submissions in support of an argument that there should be no finding of invalidity of the amending LEP even if it be determined that the preparation of the draft plan, due to its inconsistency with Direction G9, was beyond power. 137 It was submitted that both the Director-General and the Minister were aware of the issue of inconsistency and clearly intended that the amending LEP should be inconsistent with Direction G9. Accordingly, it was submitted that each of the Director-General and Minister had waived any non-compliance with that direction. 138 In my opinion, no question of waiver arises in this case. This is so for two reasons. Firstly, the Director-General had been of the view that there was no inconsistency between Direction G9 and the draft plan. Secondly, the Minister had been informed that there was no relevant s 117 direction which affected the draft plan. In these circumstances, it is difficult to see how there could be any relevant waiver of an inconsistency of which neither was aware. 139 Of greater relevance is the fact that it is not a matter for either the Director-General or the Minister to waive any non-compliance with Direction G9. Their respective powers of waiver are confined to those provided in the Act. As I observed in [135] above, the Director-General is empowered to impose a condition on a s 65 certificate requiring a draft local environmental plan to be amended in a manner which could bring it into disconformity with such a direction. The Minister is clearly empowered to make a plan which is so inconsistent, provided the prior statutory steps have been validly taken. That did not occur in the present case. The waiver argument should be therefore rejected. 140 It was then submitted that the consequence of the preparation of the draft plan in breach of Direction G9 was not to invalidate the amending LEP. Reliance was placed upon the remedy provided by s 118 of the Act, whereby as a consequence of a council's failure to comply with a direction under s 117, the Minister may by order published in the Gazette appoint a person to administer all or part of the functions conferred upon the council under the Act. It was submitted that this was an indication that a draft local environmental plan prepared in disconformity with a s 117(2) direction would not infect the statutory process such that the ultimate plan made by the Minister pursuant to s 70 would be invalid. 141 In my opinion, the existence of s 118 and the draconian remedy it provides is no answer to the present issue. The power of the Minister under the section is discretionary and was no doubt intended by the legislature to be exercised sparingly. Removing from a council the power to prepare draft local environmental plans is very different to invalidating a particular local environmental plan which has been prepared in breach of the Act. 142 More importantly, there was, as I have already observed, a non-compliance with s 66(1)(b)(i) in that the draft plan, which was publicly exhibited pursuant to that provision, was not authorised by the Act to be so exhibited. Accordingly, the public exhibition process miscarried. Given the importance of that process and, in particular, the obvious legislative intention that the public exhibition obligation imposed by s 66(1)(b)(i) be an essential step in the process of formulating the content and operation of a draft local environmental plan, I have no difficulty in discerning a clear legislative intent to invalidate any local environmental plan made by the Minister where there has been non-compliance with the public exhibition requirements of s 66(1)(b)(i). 143 The Minister submitted that the Court would strain against a construction of legislation which has the effect that an inconsistency, which may be far from obvious, might result in the frustration of the entire planning process. Reliance was placed on the following passage from Project Blue Sky at [97]: 97. Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act (82). Having regard to the obligations imposed on the ABA by s 160, the likelihood of that body breaching its obligations under s 160 is far from fanciful, and, if acts done in breach of s 160 are invalid, it is likely to result in much inconvenience to those members of the public who have acted in reliance on the conduct of the ABA."

It was submitted that this passage was applicable to the present case if the references to s 160 therein are read as references to Direction G9. 144 There are a number of answers to this submission. Firstly, it proceeds on the false premise that the inconsistency between the draft plan and Direction G9, G9(iv)(a) in particular, is "far from obvious". This is simply not so. The inconsistency was clear and significant. Secondly, I do not accept that public inconvenience would be a result of the amending LEP being declared invalid to such an extent. There would, in my opinion, be a greater public inconvenience and, in fact, public detriment, if the provisions of s 66(1)(b) were not fully and properly complied with. Thirdly, there is no reason to believe that, properly instructed as to its legal obligations, the likelihood of a council breaching its obligations to comply with a s 117(2) direction would still be "far from fanciful". I would therefore reject the Minister's submission. 145 Finally, the Council referred to s 68(4)(d)(iii) and s 69(1) and (b) as contemplating that a draft plan may reach a stage of the plan-making process where it is inconsistent with a s 117 direction. It was therefore submitted that the presence of these provisions in the statutory scheme was inconsistent with an intention on the part of the legislature that a plan made by the Minister under s 70 of the Act based on a draft plan prepared in breach of that direction, would be invalid. 146 The answer to this submission is to be found in what I have written in [120]-[123] above. Further, it does not follow that simply because the Minister may make a local environmental plan which is inconsistent with a s 117 direction otherwise applicable thereto, that this was intended by the legislature to "cure" any departure from the legislative scheme at an earlier point in the process. The making of such a plan by the Minister is predicated upon compliance with at least the more fundamental requirements of the statutory scheme. Where that has not occurred as in the present case, the whole purpose of the scheme is undermined. 147 Finally, although not raised by the parties, a question arises as to whether that part of the amending LEP which was based on that part of the draft plan which was prepared inconsistently with Direction G9, may be severed from the whole. For the reasons set forth by Spigelman CJ in [31] - [33] of his judgment, in my opinion it can. This is reflected in the declaration I have proposed. 148 It follows from the foregoing that the appellant has succeeded on his first ground of appeal. This makes it unnecessary for me to address the appellant's grounds of appeal relating to the issues determined by the primary judge and relating to the alleged breach of s 66(1)(b)(ii) and (iii) and its legal consequences. However, as important questions of principle are involved, and as the matter was argued in some detail, it is appropriate that I deal with the issues debated on the appeal relating thereto. I do so, however, on the basis upon which they were argued, namely, that the Council was empowered to prepare and exhibit the draft plan notwithstanding that part thereof was inconsistent with Direction G9.

Was there a breach of s 66(1)(b)(i) or (iii) of the Act?

149 The appellant submitted that within the meaning of s 66(1)(b)(ii), Direction G9 applied to the same land to which the draft plan was intended to apply and as a consequence the Council was obliged to publicly exhibit that direction. He further submitted that even if (as the Council submitted) the reference in s 66(1)(b)(ii) to the relevant direction "applying to the land to which the draft local environmental plan is intended to apply" is to be read in conjunction with s 66(1)(b)(iii), Direction G9(iv)(a) substantially governed the content and operation of the draft plan as it expressly prohibited any provision therein which would result in a reduction of the permissible residential density on any land to which that plan applied (which would include Areas A and B). 150 Hence it was argued that the fact that the draft plan contained provisions that were prohibited by that direction was immaterial. The whole purpose of the public exhibition of the direction was to draw to the public's attention the fact that Direction G9 substantially governed the content and operation of the draft plan (in that it prohibited any reduction in permissible densities). Such public exhibition would make apparent the inconsistency between the direction and the content and operation of the draft plan and would provide the public with the opportunity to make submissions pursuant to s 67 of the Act having regard to that inconsistency. 151 The Council advanced five submissions on this question. They can be summarised as follows:

(a) Direction G9 was given by the Minister pursuant to s 117(2) of the Act, which speaks in terms of a direction to a council to prepare a draft LEP in accordance with " principles " and/or to include in such a plan provisions to give effect to such principles. Direction G9 was therefore a " principles direction " and, by its terms, did not purport to apply to any land. This was in contrast to Directions G19 and 25, which by their terms, were expressed to apply to particular land. Direction G9 was an exhortatory statement about principles, which the Council was required to take into account when preparing the draft plan. Section 66(1)(b)(ii) only required the exhibition of directions which applied to land and not those which merely exhorted generic principles.

(b) Even if Direction G9(iv)(a) did apply to land, it had no application to the present case because it did not " zone land for residential purposes ". Areas A and B were always zoned for residential purposes - the only change proposed by the " down zoning " of those areas by the draft plan was a change to the applicable development controls. It was submitted that G9(iv) would only apply if the draft plan had zoned land for residential purposes for the first time.

(c) The sole purpose of s 66(1)(b)(ii) was to exhibit those s 117 directions which substantially governed the content and operation of the relevant draft plan. Section 66(1)(b)(ii) and (iii) were complementary and it would make no sense to exhibit the documents referred to in sub-paragraph (ii) where, in terms of sub-paragraph (iii), they did not substantially govern the content and operation of that plan. The primary judge was therefore correct in finding that Direction G9(iv)(a) did not substantially govern the content and operation of the draft plan, for the content of that plan was, as his Honour found, " contrary to, or in conflict with and otherwise divergent from " that direction. Section 66(i)(b)(ii) and (iii) was triggered only where the content and operation of the draft plan conformed with the provisions of the relevant s 117 direction.

(d) Section 66(1)(b) was not concerned with whether there was an inconsistency between a relevant s 117 direction and the content of the draft plan. Questions of inconsistency were dealt with in ss 68 and 69. Had s 66(1)(b)(iii) been concerned with inconsistency, it would have been framed in different terms.

(e) Finally, whether Direction G9 applied to " land to which the draft local environmental plan was intended to apply " and/or whether it " substantially governs the content and operation of the draft " plan within the meaning of s 66(1)(b)(ii) and (iii) of the Act were matters to be determined by the Council as a matter of judgment and were not jurisdictional facts. In other words, they required the Council to form an opinion as to those matters which could only be the subject of judicial review in accordance with established principles of administrative law. In particular, it was not open to the Court to determine as a matter of fact whether Direction G9 applied to the land to which the draft plan was intended to apply or whether it substantially governed the content and operation thereof. The Council's determination of these issues could only be challenged if it was unreasonable in the Wednesbury sense for the Council to have concluded as it did. 152 In my opinion, the failure by the Council to publicly exhibit Direction G9, and G9(iv)(a) in particular, together with its failure to publicly exhibit the statement referred to in s 66(1)(b)(iii), constituted breaches of s 66(i)(b) of the Act. I would therefore reject its submissions to the contrary for the reasons outlined below. 153 Direction G9(iv) commences with the following words: "Draft local environmental plans which zone land for residential purposes:"

It is tolerably clear that it is to apply to land which is zoned by a draft plan for residential purposes. Further, sub-paragraph (a) proscribes any such draft plan from containing provisions which will result in a reduction of the permissible residential density " on any land to which the plan applies". Again, the proscription contained in the direction applies, in terms, to " any land to which the plan applies " (my emphasis). Accordingly, in my opinion Direction G9, and in particular G9(iv)(a), applies to Areas A and B which comprise (in part) land to which the draft plan applies. The Council's first argument should therefore be rejected. 154 Direction G9(iv) applies to draft plans which zone land for residential purposes. In the present case, the draft plan zoned as 2(c) Areas A and B. It was not suggested that zone 2(c) was not one for residential purposes. The fact that Areas A and B were previously zoned 2(d) and that it was also a residential zone, does not militate against the fact that the draft plan sought to impose a new zone upon Areas A and B and that it was one for residential purposes. Accordingly, the Council's second argument should be rejected. 155 The relevant principles of statutory construction for provisions such as s 66(1)(b) of the Act are authoritatively stated in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381-2. I am therefore prepared to accept for present purposes that s 66(1)(b)(ii) and (iii) are to be construed together in the manner contended by the Council and accepted by the primary judge in the passage extracted in [31] above. However, in my opinion, Direction G9 as a whole did "substantially govern the content and operation of the" draft plan insofar as the latter sought to rezone lands within The Entrance/Long Jetty area from 2(a), 2(b) and 2(d) to 2(c) and to impose height restrictions which would result in a reduction in permissible residential densities on land previously zoned 2(d) under the 1991 LEP. Thus, for example, within the 2(c) zone dwelling houses were and are permissible without development consent. Accordingly, in zoning the relevant lands 2(c), paragraphs (ii) and (iii) of Direction G9 substantially governed the contents of the draft plan and required that it conform to the proscription contained in those directions. 156 I should record that the Council did not contend to the contrary of the proposition that had there been conformity between Direction G9 and the draft plan, the former would have substantially governed the content and operation of the letter. Clearly it would have. It would have "substantially governed" the content and operation of the draft plan with respect to the residential zones in the 1991 LEP in important ways. With respect to building heights and consequent residential densities, it would have done so in fundamental respects; cf Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 at 338 per Bowen CJ and 348 per Deane J; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No. 2) (2001) 113 LGERA 148 at 157[51]. 157 The Council's third submission was that Direction G9 could not substantially govern the content and operation of the draft plan where the content of that plan was at odds with the direction, a proposition accepted by the primary judge in the passage from his judgment recorded in [29] above. The corollary of this argument is that the Council was required to publicly exhibit a s 117 direction only where the content and operation of the draft plan conformed to the terms of the direction. If this were the case, one might ask why it would be necessary to do so having regard to the fact that the direction would be doing no more than drawing the public's attention to that conformity. 158 I have concluded in [71] that a council does not have the power to prepare a plan which is inconsistent with a relevant s117 direction. Assuming, however, that this were not the case, one can readily understand why the public's attention should be drawn to a direction which substantially governs the content and operation of a draft plan where that plan is in disconformity with the otherwise proscriptive terms of the direction, as in the present case. Being counselled by the s 66(1)(b)(iii) statement that any submission made pursuant to s 67 "should be made having regard thereto", the public's attention is drawn to the disconformity so that they are able, if they wish, to advance a submission that the draft plan should conform to that which the Minister, by his direction, has mandated. After all, directions given by the Minister pursuant to s 117(2) by their very nature refer to principles of environmental planning which the Minister has adopted as a matter of planning policy and sought to have implemented by councils in any draft plans made by them. 159 In my opinion, it follows that if any inconsistency between a draft local environmental plan and a s 117(2) direction is permissible, at least one of the objectives of s 66(1)(b)(iii) is to enable the public to access both the plan and the direction so that they can make submissions pursuant to s 67 "having regard thereto". .

160 I have concluded that the amending LEP was, at least in part, in disconformity with Direction G9. However, I am of the opinion that even where there is conformity between the direction and the draft plan, the public still has a significant interest in being made aware of the fact that the content and operation of the draft plan as exhibited had its source in a particular Ministerial direction given under s 117(2). To use the language of s 66(1)(d), the public exhibition of the direction would "better enable the draft plan and its implications to be understood'. I see no reason why that objective should not be equally applicable to the mandatory public exhibition of the documents referred to in s 66(1)(b)(ii). 161 Accordingly, the third submission of the Council should be rejected. It follows that the primary judge erred in accepting that submission and holding in [63] of his judgment that there was no obligation to publicly exhibit Direction G9. 162 The Council's fourth submission was that the question of whether there was an inconsistency between Direction G9 and the content and operation of the draft plan did not concern s 66(1)(b). As a bare proposition this is correct. However, the point I have sought to make above is that the finding of inconsistency does not militate against a finding that Direction G9 did substantially govern the content and operation of the draft plan. As I have already said, it is clearly appropriate to draw the public's attention to any disconformity or inconsistency so that any submission made pursuant to s 67 is made "having regard thereto" as required by s 66(1)(b)(iii). 163 The Council's final submission on the issue of breach of s 66 was to the effect that it was not open to the Court to determine the underlying factual basis of s 66(1)(b)(ii) and (iii) as they did not constitute jurisdictional facts. The questions of whether Direction G9 applies "to the land to which the draft local environmental plan is intended to apply" and whether it "substantially governs the content and operation of the draft local environmental plan" involve mixed questions of fact and law in that it is necessary to construe the relevant Ministerial direction in order to provide an answer. In my opinion, it is open to the Court to perform that exercise and this matter is unaffected by the question of whether any facts underlying s 66(1)(b)(ii) and (iii) are jurisdictional facts. Accordingly, this submission has no substance. 164 For the foregoing reasons, I am of the opinion that were the inconsistency in question to be regarded as permissible, Direction G9 should have been publicly exhibited pursuant to s 66 (1)(b)(ii) and a statement to the effect of that set out in s 66(1)(b)(iii) should have been publicly exhibited. The failure of the Council to do either constituted a breach of those provisions. I shall now turn now to the legal consequences of that breach.

Does a breach of s 66(1)(b)(ii) and (iii) lead to invalidity of the amending LEP?

165 I have already set out the reasoning underpinning the primary judge's answer in the negative to this question. In my respectful opinion, his Honour erred in this conclusion. To the extent that the decisions in Asquith and Premier State Developments and the obiter statements in Jessop and Monoro Acclimatisation Society support such a conclusion, they should not be followed. 166 In Project Blue Sky, McHugh, Gummow and Hayne JJ considered the validity of an exercise of a statutory power where there had been a failure to comply with an aspect of the statutory scheme. Their Honours said (at 388-389 [91]): "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue." 167 In Vanmeld, Spigelman CJ (Meagher and Powell JJA agreeing on this point), cited the above passage from Project Blue Sky and said (at 89) (omitting citations): "34. Their Honours went on to accept the analysis in Tasker v Fullwood in which this Court rejected the traditional distinction between 'directory' and 'mandatory' requirements and posed the test in the following terms: 'A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid…. In determining the question of purpose regard must be had to the language of the relevant provision and the scope and object of the whole statute.' 35. This approach has long been adopted by this Court and it has now been authoritatively approved in the Project Blue Sky ." 168 The importance of providing increased opportunity for public involvement and participation in the plan making process cannot be gainsaid and is a specific object of the Act: see s 5(c). This was restated by Spigelman CJ in Vanmeld in the following terms (at 90): "37. The importance of the process of public consultation in the formulation of local government plans has long been recognised: see, eg, Scurr v Brisbane City Council , a judgment which was concerned with the City of Brisbane Town Planning Act 1964 (Qld), but which has been cited on numerous occasions in other jurisdictions since that time. The appellant referred to a number of cases in which the failure to perform a statutory requirement led to invalidity. Each case must turn on the particular statutory regime. 38. The detailed scheme of consultation and public exhibition in the Environmental Planning and Assessment Act , makes it clear that parliament regarded the procedural steps as of considerable significance for the integrity of the process of formulating local environment plans."

See also Curac v Shoalhaven City Council (1993) 81 LGERA 124 at 128 per Stein J. 169 Also relevant is the judgment of this court in El Cheikh v Hurstville City Council (2002) 121 LGERA 293 at 296 although in that case it was conceded by the Council that the invalidity of a notice given by it under s 66(1)(a) of the Act resulted in the invalidity of the local environmental plan referred to therein. After observing that a misleading notice given under s 66(1)(a) which is invalid does not comply with s 66 of the Act, such that the Director-General could not report to the Minister (as she is required to do by s 69(c)) that s 66 has been complied with, Sheller JA said the following (at 296[3]): "The power of the Minister to make the plan depends upon the Minister being satisfied that the provisions of s 66 have been complied with. If they have not, the Minister has no power to make the plan or any part of it. The plan so made is wholly invalid." 170 Although his Honour's remarks were made in the context of a notice given pursuant to s 66(1)(a) of the Act and later found to be invalid, in my opinion they are equally applicable to a failure to comply with the public exhibition requirements of s 66(1)(b). Further, contrary to the view expressed by the primary judge, I can see no proper basis for differentiating between a failure to publicly exhibit a copy of the documents referred to in s 66(1)(b)(i) and a failure to exhibit a copy of the documents referred to in s 66(1)(b)(ii) and (iii). Each are important in their own particular way and I do not believe that the objectives underpinning the public exhibition process are enhanced by the categorisation of documents as principal and secondary or ancillary. 171 Further to this point, I do not consider that the division adopted by the primary judge is either appropriate or, for that matter, reflected in the statutory provisions, when properly construed. His Honour sought to justify it in two ways. Firstly, he referred to his own decision in Jessop, where he had interpreted the heading of s 66:"Public exhibition of draft local environment plan", as an indication that the exhibition of the draft plan itself was the principal object of s 66, the material referred to in s 66(1)(b)(ii) being "clearly ancillary and subsidiary". No doubt it is true that the principal object of s 66 is to publicly exhibit the draft plan so as to facilitate the right of members of the public to make submissions to the Council with respect to its provisions pursuant to s 67. But it does not follow that the requirement to publicly exhibit the documents referred to in s 66(1)(b)(ii) and the statement referred to in s 66(1)(b)(iii) are ancillary or subsidiary in the sense that it is legally immaterial whether or not they are exhibited. The purpose of those provisions is to facilitate the object of the Act identified in s 5(c), being the enhancement of public involvement and participation in the plan-making process. That object cannot be achieved if documents relevant to better informing the public in that regard are withheld (whether intentionally or unintentionally) from the public domain despite the mandatory terms of the statutory provision in question. 172 Secondly, the primary judge drew a distinction in [99] and [100] of his judgment between cases such as Scurr v Brisbane City Council (1973) 133 CLR 242 and Litevale Pty Limited v Lismore City Council (1997) 96 LGERA 91, where an inaccurate, inadequate or misleading public notice was held to result in the invalidity of "resultant actions", and cases such as Asquith, Premier State Development and the present, where no such defect was involved and hence there was no resultant invalidity. The basis for the distinction was said by his Honour (at [99]) to be that in the former type of case "….important aspects of the relevant town planning legislation were actually or potentially frustrated or undermined', whereas in the present case he opined that the public was in no way misled or otherwise prejudiced by the non-exhibition of Direction G9. 173 In my view, the premise adopted by the primary judge to distinguish the present case from Scurr and Litevale is unsustainable. To assert that the public "was in no way misled or otherwise prejudiced" by the Council's failure to publicly exhibit Direction G9 ignores the very purpose of the obligation imposed by the Act, which, as I have already stated, is to inform the public of a Ministerial direction to the Council which substantially governed the content and operation of the draft plan, particularly with respect to the permissible residential density of the land to which it was intended to apply. 174 The legislative purpose of s 61(1)(b)(ii) and (iii) and its significance is further discernable from the fact that the statement required to be publicly exhibited pursuant to s 61(1)(b)(iii) must in terms state that any submission made by any person pursuant to s 67 should be made having regard to the document exhibited pursuant to s 61(1)(b)(ii). The clear inference is that the legislature considered that it would be inimical to the object of the Act identified in s 5(c) if members of the public were to make a s 67 submission without the opportunity to consider the documents referred to in s 61(1)(b)(ii) and their relationship to, and the effect on, the provisions of the exhibited draft plan. 175 Finally, it is to be observed that the importance of complying with the mandatory provisions of s 66(1)(b) is emphasised in the Act by the obligation imposed on the Council by s 68(4)(d)(i) to submit to the Director-General a statement to the effect that the provisions (note the use of the plural) of s 66 (relating to public involvement in the preparation of the draft plan) have been complied with. An identical obligation is imposed upon the Director-General by s 69(c) when furnishing his or her report to the Minister. 176 Given the objectives set forth in s 5(c) of the Act, I regard the legislative intention as being to render compliance by council with the public exhibition obligations imposed by s 66(1)(b) an essential step in the process of formulating the content and operation of a draft local environmental plan for submission to the Director-General for ultimate adoption by the Minister. I would thus discern a clear legislative intent to invalidate any local environmental plan where the public exhibition requirements of s 66(1)(b) have not been complied with. Accordingly, in my opinion, the amending LEP, at least in part, was invalid.

Should a declaration of invalidity be made? 177 In my opinion, the considerations which have led me to the conclusion that the amending LEP is invalid, are relevant also to the question of whether as a matter of discretion a declaration of invalidity should be made. In this respect neither the Council nor the Minister expressly submitted that such a declaration should be refused on discretionary grounds if the basis of invalidity was that the Council did not have the power to prepare the draft plan or part thereof because it (or that part) was inconsistent with Direction G9. However, the same considerations apply to both bases of invalidity which I have found.

178 In its written submissions pertaining to the appellant's grounds of appeal other than the first ground, the Council submitted that the Court should not make such a declaration. It based that submission upon the fact that the only party to have complained about the failure to publicly exhibit Direction G9 was the appellant (or at least there was no evidence that any other member of the public or landowner affected by the amending LEP had so complained). In addition, it was said that the appellant had not only made a specific submission to the Council with respect to the inconsistency between Direction G9 and the draft plan but had also made a similar submission direct to the Director-General before she had prepared her s 69 report. 179 The fallacy in the Council's argument is that it fails to appreciate that the appellant's land comprised only one half of Area A (in approximate terms) and that Area B (which was approximately four times the size of Area A) comprised a number of different landowners. Those landowners were potentially as affected as the appellant by the significant reduction, contrary to Direction G9(iv)(a), of the residential density previously permissible on the land in those areas when zoned 2(d). It cannot be known whether members of the public other than the appellant would have made submissions under s 67 had Direction G9 been publicly exhibited, thus enabling those persons to appreciate that the reduction in the permissible residential density on their land was contrary to the direction. As Wilson J said in Pioneer Concrete (Qld) Pty Limited v Brisbane CityCouncil (1980) 145 CLR 485 at 518: "One may never know whether a proper application, and adequate advertisements, would have alerted other citizens who would have exercised their right to participate as objectors." 180 To similar effect is the following passage from the judgment of Stein J (then a member of the Land and Environment Court) in Curac (at 130): "The problem for the respondents on the issue of discretion is that while they can point to a lack of prejudice to the applicant, and many others, caused by the breach, they cannot be sure that some members of the public would not have come forward with objections if there had been compliance with the requirements of the statute. One will never know. As Mr Maston, appearing on behalf of the applicant, submits, it is the rights of the unknown objectors which the applicant presses."

See also Helman v Byron Shire Council (1995) 87 LGERA 349 at 360 per Handley JA. 181 As I have indicated, the fundamental significance of the public exhibition provisions of s 66(1)(b) in relation to the plan-making process is manifest. As Stein J also observed in Curac (at 128) (omitting citations): "The importance of public notice provisions such as s 84, cannot be underestimated. Reasonable opportunities for public participation in plan making and in the development process are crucial to the integrity of the planning system provided under the Environmental Planning and Assessment Act . Section 84, coupled with the provisions in reg. 37 to reg. 40, are requirements intended to ensure public participation in the planning process. They are, in effect, statutory requirements to serve the public interest inherent in the objective contained in s 5(c) of the Act." 182 In my opinion, these sentiments are equally applicable to s 66(1)(b). Subject to one matter, I do not consider that the discretionary matters relied upon by the Council should lead the Court to decline to make a declaration of invalidity with respect to the amending LEP. 183 My one reservation in relation to a declaration that the whole of the amending LEP is invalid, is the prejudice that would be suffered by those who own land which had been zoned 2(a) and (b) under the 1991 LEP which has been rezoned by the amending LEP to 2(c). Although the Council did not elicit any evidence that any such owner has taken any steps in reliance upon that rezoning, I nonetheless see no reason why a declaration should not leave the rezoning of those lands unaffected so that any declaration of invalidity is confined to the rezoning of Areas A and B from 2(d) to 2(c). It is only landowners within those areas who were directly affected by the Council's failure to prepare and exhibit a draft local environmental plan which conformed to Direction G9 or to publicly exhibit that direction. Section 124(1) empowers the Court to make such orders as it thinks fit to remedy any breach of the Act. That power is sufficiently wide to accommodate the form of declaration I propose.

Orders 184 I would therefore propose the following orders and declaration:

(a) Appeal allowed. (b) Set aside the orders made by Bignold J on 25 October 2002. (c) Declare that Wyong Local Environmental Plan 1991 (Amendment No. 118) published in the New South Wales Government Gazette No. 168 on 22 December 2000 is invalid to the extent to which it purports to amend Wyong Local Environmental Plan 1991 by zoning as 2(c) (Medium Density Residential Zone) land located at The Entrance and Long Jetty which is zoned 2(d) (High Density Residential Zone) in the said Plan. (d) The first respondent to pay the appellant's costs of the appeal and the proceedings in the Land and Environment Court. **********

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