Stannic Securities Pty Ltd v Wyong Shire Council

Stannic Securities Pty Ltd v Wyong Shire Council - [2010] NSWLEC 249 - NSWLEC 2010 case summary — Zoe

[12]

JUDGMENT INTRODUCTION 1 HIS HONOUR: This proceeding is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) in Class 1 of the Court's jurisdiction against a deemed refusal by the respondent, Wyong Shire Council, of development application DA 74/2010 for a residential subdivision lodged by the applicant, Stannic Securities Pty Ltd, on 27 January 2010. The Minister for Planning appears pursuant to s 64 of the Land and Environment Court Act 1979. 2 The only issues concern the quantum of monetary contributions towards the provision or improvement of amenities or services under s 94 of the EPA Act. 3 Before the Court is a motion filed by the Council, supported by the Minister and opposed by the applicant, seeking determination of the following preliminary question: "Whether the effect of the directions made by the Minister pursuant to s 94E of the Environmental Planning and Assessment Act 1979 (NSW) dated or having effect from 7 June 2010, 15 September 2010 and 16 September 2010 is that the quantum of the section 94 contributions lawfully leviable by the respondent in respect of the subject development application is 'capped' at $20,000.00 per allotment or at all." (I have changed the date in the question as formulated from 8 June to 7 June because the latter date is correct). 4 The parties agreed that the issue of whether this point should be determined as a separate preliminary question, and the argument on the possible separate question, should be heard together. At an early stage of the hearing, I ordered that the point be determined as a separate preliminary question. My reasons are that (a) it is a distinct legal question capable of being determined separately; (b) it is in fact being argued separately with all parties having lodged written submissions; (c) the only interest of the Minister in the proceeding relates to the preliminary point and therefore the Minister would have sought that the point be the subject of distinct and confined argument at some point in the proceedings; (d) there is a public interest in resolving the question; (e) the question is not dependent upon the facts of the case; and (f) the answer to the question should be useful to the parties for it will define the way forward with the balance of the case. Indeed, if there is no cap the council indicated an intention to issue a consent and impose a condition for s 94 contributions that would exceed the alleged cap of $20,000 per lot. 5 I turn to the determination of the preliminary question.

[32]

18 In my view, as the 16 September 2010 Direction revoked the 15 September 2010 Direction, the preliminary issue turns on whether the revocation in the 15 September 2010 Direction revoked the 4 June 2010 Direction in its application to the subject land, which was identified in Schedule 2 of the 15 September 2010 Direction. 19 There were originally submissions by all parties that in construing the 15 and 16 September 2010 Directions, statements supportive of the parties' respective constructions in planning circulars issued by the Department of Planning should be used. However, perhaps shrinking from the support that such statements provided for the Minister's construction, the applicant ultimately submitted that they should not be used. 20 In my opinion, statements in the planning circulars should not be used to construe the Directions. An analogy may be found in principles concerning the use of extrinsic material in the interpretation of a provision of a statute. Certain extrinsic material may be used if it is "capable of assisting in the ascertainment of the meaning of the provision": s 34 Interpretation Act 1987. However, statements as to legislative intention made in explanatory memoranda or by ministers, let alone other statements in parliamentary speeches, are rarely, if ever, capable of assisting in the meaning of a provision and cannot overcome the need to consider the words of the statute to ascertain its meaning: Saeed v Minister for Immigration and Citizenship [2010] HCA 23, 84 ALJR 507 at [31]; Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380 at [12]; Sheehan v State Rail Authority of NSW [2009] NSWCA 261 at [40]; Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 at [80]. That is because the interpretation of statutes or other legal documents is concerned with the objective meaning of words in their context, not with what ministers, parliamentarians or authors subjectively intended them to mean. Statements by third parties, including a minister's department, as to what they think words in a statute mean are of no assistance in ascertaining their objective meaning. Similarly in the present case, statements by the Minister's Department as to what it thinks the Minister's Direction means are of no assistance in ascertaining the objective meaning of the Direction. Moreover, the relevant planning circulars appear to have been issued shortly after the Directions to which they respectively relate were made and no analogy is to be found in principles concerning the interpretation of statutes or other legal documents which would permit subsequent material or conduct to be used as an aid to interpretation.

[42]

(a) land for which there is a $20,000 cap per dwelling, being all land other than the land identified in Schedules 2 or 3; (b) land for which there is a $30,000 cap, being land identified in Schedule 3; (c) for Schedule 2 land, there is again a $20,000 cap. The reasoning is that the 15 September 2010 Direction "does not apply to land identified in Schedule 2", and hence the previous 4 June 2010 Direction (which sets a cap of $20,000 per lot) is not revoked insofar as it applies to land identified in Schedule 2 (which includes the subject land). 31 The applicant's construction creates two separate categories - (a) and (c) - which are essentially identical. The $20,000 cap set out in clause (1) of the 4 June 2010 Direction is in identical terms to the cap identified in Clause 1(1) of the 15 September 2010 Direction, save that the latter is expressed to be "subject to sub clause (2)" which applies a higher cap to Schedule 3 land: see [10] and [12] above. A potential difference between the applicant's categories (a) and (c) is that the former is subject to the potential for a case by case increase by the Minister pursuant to clause 1(3), whereas the latter is not. This difference is one of form rather than substance because under s 94E(I) the Minister may issue a direction either "generally or in any particular case or class of cases". The Minister thus always had a power to issue a direction in a particular case, including to increase the cap. The presence of sub-clause 1(3) in the 15 September 2010 Direction therefore does not make sense of the applicant's categories (a) and (c). There is no reason that the Minister would have intended to create two distinct categories with no difference between them. As there is no difference, on the applicant's construction the third sentence and Schedule 2 are superfluous because all the work that they do is done by cl 1(1). It is difficult to see why such care would have been taken to identify the land in Schedule 2 if all that work was unnecessary. It suggests that the applicant's construction is not acceptable.

[43]

32 The applicant acknowledges that this point would have force if it were correct but submits that it is incorrect because its categories (a) and (c) are not identical. That is said to be because cl 1(3) of the 15 September 2010 Direction authorises the Minister to increase the cl 1(1) and (2) caps in a particular case (applicant's categories (a) and (b)), but does not authorise any increase in the $20,000 cap in the 4 June 2010 Direction which (on the applicant's construction) continues to apply to Schedule 2 land including the subject land (applicant's category (c)). The submission does not confront the effect of s 94E(1) discussed earlier. Leaving s 94E(1) to one side, it is reasonable to ask whether there is any reason why the Schedule 2 land should be excepted from the cl 1(3) power of increase. The applicant submits that a reason is to be found in Note 2 of the Minister's 31 May 2009 Direction to the respondent council which set a cap of $34,682.11 per lot. Note 2, which did not form part of that Direction (see cl 1.3), said that the Council was to adopt a new contributions plan for the subject land by the end of 2009. As this was not done, the applicant suggests that, as a kind of punishment, the Minister's 15 September 2010 Direction made no provision for increasing the $20,000 cap relating to that land. 33 The suggested explanation is speculative and, in addition, does not explain why numerous other councils whose lands are listed in Schedule 2 of the 15 September 2010 Direction should have been "punished" in the same way. As to the latter point, the applicant says that it was within the Minister's power to provide the explanation and the Minister has not done so. I do not accept that the onus of proof is reversed in this way so as to require the Minister to support the applicant's speculative theory. The lack of a plausible reason for the non-application of cl 1(3) to the applicant's category (c) land (which includes the subject land) tends to weigh against the acceptability of the applicant's construction.

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