Stannic Securities Pty Ltd v Wyong Shire Council

KEY ISSUES: DEVELOPMENT APPLICATION :- contributions towards provision or improvement of amenities or services under s 94 Environmental Planning and Assessment Act 1979 - quantum - effect of directions made by Minister pursuant to s 94E is not to cap the quantum of s 94 contributions lawfully leviable by respondent council in respect of subject development application

Environmental Planning and Assessment Act 1979, ss 94, 94B, 94E, 97 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000, cl 26(3) Interpretation Act 1987, s 33 Land and Environment Court Act 1979, s 64

Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380 Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 CASES CITED: Patman v Fletcher's Fotographics Pty Ltd (1984) 6 IR 471 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 Saeed v Minister for Immigration and Citizenship [2010] HCA 23, 84 ALJR 507 Sheehan v State Rail Authority of NSW [2009] NSWCA 261

APPLICANT: Mr J Griffiths SC SOLICITORS: Esplins

RESPONDENT: LEGAL REPRESENTATIVES: Mr J Ayling SC SOLICITORS: HWL Ebsworth Lawyers

MINISTER FOR PLANNING: Mr J Kirk SOLICITORS: Department of Planning

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

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.

6 The applicant submits that the amount of s 94 contributions is capped at $20,000 per lot referred to in a direction made on 4 June 2010 by the Minister pursuant to s 94E of the EPA Act. The Minister and the Council submit that as a result of the Minister's directions of 15 and 16 September 2010 there is no cap in relation to lots on the subject land. In my opinion, the construction proposed by the Minister and the Council is correct and the preliminary question should be answered accordingly.

STATUTORY CONTEXT 7 The EPA Act relevantly provides: " 94 Contribution towards provision or improvement of amenities or services

(1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring: … (b) the payment of a monetary contribution, (2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.

94B Section 94 or 94A conditions subject to contributions plan

(1) A consent authority may impose a condition under section 94 or 94A only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division). …

(3) A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction…

(1) The Minister may, generally or in any particular case or class of cases, direct a consent authority as to: … (b) in the case of a condition under section 94 requiring the payment of a monetary contribution: … (ii) the maximum amount of any such contribution, and … (2) A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms. (3) A consent authority must not, in granting development consent in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division and despite the provisions of any contributions plan.

(1) In relation to an application made to an accredited certifier for a complying development certificate, a contributions plan: (a) is to specify whether or not the accredited certifier must, if a complying development certificate is issued, impose a condition under section 94 or 94A…"

8 Clause 26(3) of the Environmental Planning and Assessment Regulation 2000 provides that a council "must not approve a contributions plan that is inconsistent with any direction given to it under section 94E of the Act". MINISTER'S DIRECTIONS 9 Three Directions of the Minister under s 94E are directly relevant to the preliminary question. 10 First, a general Direction by the Minister dated 4 June 2010 and expressed to take effect on and from 7 June 2010 (the 4 June 2010 direction). It relevantly stated: "I, the Minister for Planning, in pursuance of section 94E of the Environmental Planning and Assessment Act 1979…direct councils as consent authorities to comply with the requirements set out in this Direction.

This Direction revokes the previous Directions issued under section 94E of the Act as set out in the Schedule to this Direction.

(1) A council as a consent authority must not impose a condition of development consent under section 94(1) or 94(3) of the Act requiring the payment of a monetary contribution exceeding $20,000 for each dwelling authorised by the consent or in the case of a development consent that authorises the subdivision of land into residential lots, exceeding $20,000 for each lot authorised by the consent."

11 The Schedule of revoked previous Directions identified a general Direction of 13 January 2009 to all councils fixing the maximum amount of contributions at $20,000 per lot or dwelling and a host of specific Directions to many individual councils dated 31 May and 10 July 2009, including a specific Direction to the respondent Council dated 31 May 2009 which increased the maximum contribution to $34,682.11 per lot or dwelling.

12 Secondly, a general Direction undated and expressed to take effect on and from 15 September 2010 (the 15 September 2010 Direction). It relevantly stated: "I, the Minister for Planning, in pursuance of section 94E of the Environmental Planning and Assessment Act 1979 direct councils as consent authorities to comply with the requirements set out in this Direction.

This Direction revokes the previous Direction under section 94E of the Act as set out in Schedule 1. This Direction does not apply to land identified in Schedule 2.

(1) A council as a consent authority must not impose a condition of development consent under section 94(1) or 94(3) of the Act requiring the payment of a monetary contribution exceeding $20,000 for each dwelling authorised by the consent or in the case of a development consent that authorises the subdivision of land into residential lots, exceeding $20,000 for each lot authorised by the consent, subject to subclause (2).

(2) Where development is carried out on land identified in Schedule 3, a council as a consent authority must not impose a condition of development consent under section 94(1) or 94(3) of the Act requiring the payment of a monetary contribution exceeding $30,000 for each dwelling authorised by the consent or in the case of a development consent that authorises the subdivision of land into residential lots, exceeding $30,000 for each lot authorised by the consent.

(3) The Minister may approve an increase in the maximum amount of a monetary contribution in (1) and (2), in a particular case on the application of a council." 13 The 15 September Direction said it did not apply to land identified in Schedule 2. Schedule 2 identified land in the local government areas of a host of councils, including the subject land. The 15 September Direction revoked the Directions set out in Schedule 1 which identified "the Direction, dated 8 June 2010, to councils exercising functions as a consent authority". This was a slip for there was no direction dated 8 June. Schedule 1 should be understood to be referring to the 4 June 2010 Direction which was expressed to take effect on and from 7 June 2010, for there is no other Direction to which it could refer. 14 Thirdly, a general Direction also undated and expressed to take effect on and from 16 September 2010 (the 16 September 2010 Direction). This Direction was expressed in identical terms to the 15 September 2010 Direction except that Schedule 1 identified the 15 September 2010 Direction and in Schedule 2 there were some slight differences in the land identified. Schedule 2 still included the subject land.

15 All three Directions are directed to councils as consent authorities. They therefore did not apply to other consent authorities, such as joint regional planning panels, included in the definition of "consent authority" in s 4 of the EPA Act. CONSTRUCTION 16 The dispute between the parties relates to whether the Direction made on 4 June 2010 has any continuing force.

17 The applicant submits that the preliminary issue turns on the construction of the 16 September 2010 Direction.

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.

21 The Minister and the Council submit, and the applicant contests, that the Directions are analogous to regulations because they have binding force on all local councils when exercising statutory power and third parties may rely on them; that it is therefore appropriate to apply the principles of statutory construction set out in the next paragraph; and that those principles are, in any event, reflective of the general approach taken by the common law to construction of legal documents. There is force in the submission. The primary object of interpretation of a statute and the primary object of interpretation of a legal document are the same: to determine objectively the meaning of words in their context. Accordingly, there is some convergence in approach in statutory interpretation and in contractual interpretation notwithstanding that some documents by their nature, may attract special rules of interpretation which are not of general application: Spigelman CJ, From Text to Context: Contemporary Contractual Interpretation, (2007) 81 ALJ 322.

22 The following are the principles of statutory construction for which the Minister and Council contend, which I accept can be adapted and applied to the Directions and tend to support their construction:

(a) The primary object is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [69]. (b) Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the provisions: Project Blue Sky at [70]. (c) A court must strive to give effect to every word: Project Blue Sky at [71]. (d) A construction that would promote the purpose or object of the statute is to be preferred to an alternative construction: s 33 Interpretation Act 1987. (e) A way of discerning the purpose may be to read the Act in the sequence in which it was written, that is, from the beginning onwards: Patman v Fletcher's Fotographics Pty Ltd (1984) 6 IR 471 at 474-5 per Priestley JA: 23 The first three sentences in the 15 September 2010 Direction are central to the dispute: "[The Minister] directs councils as consent authorities to comply with the requirements set out in this Direction.

This Direction revokes the previous Direction under section 94E of the Act as set out in Schedule 1. This Direction does not apply to land identified in Schedule 2." 24 Schedule 1 refers to a Direction dated 8 June 2010 which, as discussed earlier, was a slip and was intended to refer to the 4 June 2010 Direction. Schedule 2 includes the subject land.

25 The applicant's construction is that the third sentence just quoted operates to qualify the second sentence (the revocation provision), such that the revocation of the 4 June 2010 Direction does not apply to land identified in Schedule 2 - which includes the subject land. The applicant argues that if the 15 September 2010 Direction was aimed at qualifying "the requirements" of the first Direction it would have expressly referred to "the requirements" as the first sentence did.

26 The competing construction of the Minister and the council is that the 4 June 2010 Direction was wholly revoked by the second sentence just quoted, that the third sentence simply has the effect that the operative parts of the Direction (being what is set out in clause 1 under the heading "Requirements of this Direction") do not apply to the land identified in Schedule 2; and that the two caps imposed by cl 1 covered the field and substituted for the 4 June 2010 Direction. In my opinion, that construction is correct.

27 The second sentence in the 15 September 2010 Direction ("This Direction revokes the previous Direction under section 94E of the Act as set out in Schedule 1"), operates to revoke the previous 4 June 2010 Direction. The sentence is unqualified. The identification of the previous Direction in Schedule 1 is also unqualified. The third sentence ("This Direction does not apply to land identified in Schedule 2") simply operates to qualify the operation of the requirements in the 15 September 2010 Direction set out in clause 1. That gives the most natural effect to the text. If it had been intended that it merely qualified the revocation of the previous Direction, as the applicant contends, then it would be expected that this would have been clearly done in the second sentence which effected the revocation, or by clear qualification of that sentence. 28 Although the third sentence does not expressly refer to "the requirements" of the Direction (unlike the first sentence), the legal work that it does must be referable to the requirements for two reasons. First, the requirements are plainly the subject of the Direction. Secondly, s 94E of the EPA Act is only concerned with requirements of directions: see [7] above. The section does not mention revocation of directions. Although a direction that conflicts with an earlier direction implicitly revokes the previous direction, it is nevertheless sensible to say that it is revoked in the direction, but that is ancillary to the work of the direction authorised by the statute.

29 Further, the consequences of the competing constructions weigh against the applicant's construction. On the construction put by the Minister and the Council, there are three relevant categories of land:

(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) land for which there is no cap on contributions, being land identified in Schedule 2. That result is achieved because the sentence that "This Direction does not apply to land identified in Schedule 2" has the effect of removing the potential application of either of the two caps identified in clause 1 of the Direction to the land in Schedule 2. 30 The effect of the construction put by the applicant is also to identify three categories, of which the first two are the same as the first two categories in the construction put by the Minister and Council:

(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.

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.

34 For these reasons, I accept the construction for which the Minister and the Council contend. CONCLUSION 35 Accordingly, in my opinion, the answer to the separate question is as follows:

The effect of the Directions made by the Minister pursuant to s 94E of the Environmental Planning and Assessment Act 1979 dated or having effect from 7 June 2010, 15 September 2010 and 16 September 2010 is not to cap the quantum of s 94 contributions lawfully leviable by the respondent in respect of the subject development application.

36 The exhibit may be returned. The proceeding will be listed before the List Judge for directions on 10 December 2010.

31/01/2011 - typographical error - Paragraph(s) 20

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