Sutherland Shire Council v Benedict Industries Pty Ltd

Benedict is Charged With Four Offences of Contravening a Tree and Bushland Preservation Order

1. The factual background to this collateral challenge can be found in Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97 (at [4]-[6]). It is not repeated here.
2. In proceedings 50921 of 2012, the prosecutor, Sutherland Shire Council ("the council"), charges the defendant, Benedict Industries Pty Ltd ("Benedict"), with two offences, that from 1 August 2010 and continuing until 16 September 2010, at Menai, Benedict committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("EPAA"), in that it did the following things forbidden by the Sutherland Shire Tree and Bushland Preservation Order 2001 ("the TPO"): 1. first, that without the prior written consent of the council Benedict injured bushland vegetation within the local government area contrary to cl 2 of the TPO; and 2. second, without the prior written consent of the council it injured trees within the local government area contrary to cl 2 of the TPO.
3. In proceedings 50100 of 2013, the council charges Benedict with two additional offences for alleged contravention of the TPO in the same terms, except that the charges relate to its conduct in a later charge period, namely, from 3 June 2011 and continuing until 23 October 2011.
4. Each summons asserts that the TPO was adopted by the council on 21 May 2001 and published in the New South Wales Government Gazette ("the Gazette") on 13 July 2001 and the St George and Sutherland Shire Leader on 26 July 2001.
5. It is an essential part of the council's case that it asserts that the TPO was adopted by the council on 21 May 2001, and came into effect upon the publication of the TPO in the Gazette and the St George and Sutherland Shire Leader.
6. Benedict submits that the four charges against it in the two proceedings referred to above should be dismissed on the basis that the TPO did not validly apply during the charge periods.
7. The challenge is attended by a degree of urgency insofar as it must be determined prior to the prosecutions to which it relates being set down for final hearing (the original four week hearing was vacated as the trial was due to commence for reasons given in Benedict (No 3)). But for the resolution of this collateral attack, the parties are in a position to take a hearing date, and for the sake of Benedict, this should be accommodated as soon as possible.

Issues for Determination

1. By its collateral challenge Benedict raises the following four issues for determination: 1. first, whether, as particularised in the summonses, the resolutions by the council on 21 May 2001 constituted a valid making of the TPO for the purposes of the Sutherland Shire Local Environmental Plan 2000 ("2000 LEP"); 2. second, whether the TPO was invalid because as at 21 May 2001 it could not, contrary to cl 1 of the TPO apply consistently across all of the Sutherland Shire; 3. third, whether the TPO is invalid because on its terms, it departed in fundamental respects from the order that the council was empowered to make under cl 13(3) of the 2000 LEP insofar as it confined the manner of exercise of power to approve an application for the removal of a tree or vegetation in writing, and therefore, was outside the authority conferred by that clause; and 4. fourth, even if the TPO was validly adopted by the council, whether it ceased to have any valid operation in respect of the land the subject of the four charges upon the repeal of its parent instrument - the 2000 LEP - on 29 November 2006, by reason of the coming into force of the Sutherland Shire Local Environmental Plan 2006 ("the 2006 LEP"), and therefore, did not apply to the land the subject of the four charges during any of the relevant charge periods.
2. It is open to Benedict to mount a collateral challenge to the validity of the TPO. In criminal proceedings in which an accused is charged with an offence contravening a statutory order or instrument, the accused may mount a collateral attack on the validity of the statutory order instrument (Gray v Woollahra Municipal Council [2004] NSWSC 112 at [51]-[112] and Liverpool City Council v Cauchi [2005] NSWLEC 675; (2005) 145 LGERA 1 at [41]-[42] and the authorities cited thereat).
3. The council bears the burden of proof in respect of Benedict's collateral challenge to the validity of the TPO (Selby v Pennings (1998) 102 LGERA 253 at 265 per Ipp J and 283 per Owen J)
4. Both Benedict and the council relied upon the following evidence in support of their arguments: 1. paragraphs 7 to 18 of the affidavit of Mr Todd Hopwood sworn 19 July 2013, appending the various documents concerning the purported making of the TPO by the council; 2. paragraphs 7 to 17 of the affidavit of Ms Beth Morris sworn 7 September 2013, which, amongst other things, annexed copies of the publication of the TPO in the Gazette and the St George Sutherland Shire Leader; and 3. maps forming part of the 2000 LEP and Sutherland Shire Local Environmental Plan 2006 ("the 2006 LEP") indicating the application of those Plans to the land the subject of the charges.
5. Mr Hopwood is the Governance Manager within the Corporate Services Division of the council. Ms Morris is a Senior Policy Advisor with the council.
6. The facts deposed to by Mr Hopwood and Ms Morris in their respective affidavits concerning the steps taken by the council in order to make the TPO were not in contention, this included the publication of the TPO in the publications, and on the dates, particularised in the summonses.

The Purported Adoption of the TPO by the Council

1. On 29 January 2001, the Environment and Health Committee of the council met and considered the development of a new TPO for the council's local government area. A report was prepared by the Committee to inform the council of a proposed new TPO with the objective of creating a consistent policy and instrument applying across the council's local government area, which would also include bushland vegetation. A new TPO was proposed, which was referred to as the "Sutherland Shire Tree and Bushland and Vegetation Preservation Order".
2. The "Background" to the report expressed the concern that, pursuant to legal advice sought in January 1997, the then current TPO may not preserve trees and bushland as originally intended, or apply consistently across the Sutherland Shire. It was therefore recommended that the relevant environmental planning instruments relating to land in the Sutherland Shire be amended to include a provision relating to the preservation of bushland vegetation in conformity with the 2000 LEP, and to ensure that the TPO was able to be consistently applied.
3. Relevantly, the report identified that the following environmental planning instruments were applicable to preserving trees and bushland in the local government area: the 2000 LEP; the Sydney Regional Environmental Plan 17 - Kurnell Peninsula ("SREP 17"); and the Sutherland Local Environmental Plan - Menai Town Centre ("the Menai LEP"). It was noted that SREP 17 adopted Clause 8 (Preservation of trees) of the Model Provisions, however, the Menai LEP did not, nor did it provide for the making of a TPO and accordingly, any enforcement pursuant to the current TPO relating to trees on land the subject of the Menai LEP was invalid.
4. A draft Tree and Bushland Vegetation Preservation Order was therefore prepared to replace the existing TPO ("the draft TPO"). A copy of the draft TPO was attached to the report.
5. The report indicated that "the proposed Tree and Bushland Vegetation Preservation Order will apply to the whole Shire and aims to protect and preserve trees and areas of bushland vegetation". Thus "in order to ensure" that the above objectives were met, the following actions had been undertaken: A draft LEP has been prepared to amend the Sutherland LEP - Menai Town Centre. The draft LEP proposes to delete references to "tree lopping or removal" from the land use table in the Menai Town Centre LEP and inserting a new provision relating to the preservation of tree and bushland vegetation preservation. Bushland vegetation for the purpose of the order refers to "vegetation which is either a remainder of the natural vegetation of the land, or if altered, is still representative of the structures and floristic of natural vegetation. A copy of the Draft LEP is included at Attachment 1. An amendment to Sydney Regional Environmental Plan No 17 - Kurnell Peninsula to delete reference to Clause 8 of the Model Provisions and instead inserting a new provision relating to the preservation of tree and bushland vegetation preservation. A copy of the amendment to SREP 17 is included at Attachment 2. A Tree and Bushland Vegetation Preservation Order has been prepared to replace the existing Tree Preservation Order. The Order has been referred to Council's Environmental Lawyers and Council's Corporate Lawyer for their comments. Their comments have been incorporated into the draft Order.
6. It was stated that "the proposed Tree and Bushland Vegetation Preservation Order will provide for the consistent protection of trees and bushland across the Sutherland Shire".
7. As a consequence, the Committee recommended in the report that the draft LEP, the amendment to SREP 17 and the draft TPO be publically exhibited concurrently for a period of 28 days.
8. In conclusion, the report again emphasised that the proposed amendments would alter the council's current environmental planning instruments to include a consistent provision that would apply to all land within the Sutherland Shire and would enable enforcement of the new TPO.
9. The report made the following recommendations: Report Recommendation: That the Sutherland Shire draft Local Environmental Plan Menai Town Centre 1992 (Amendment 3) be endorsed for public exhibition, and the Department of Urban Affairs and Planning be advised in accordance with Section 54(1) of the Environmental Planning and Assessment Act 1979. That the Department of Urban Affairs and Planning be advised that Sydney Regional Environmental Plan No. 17 - Kurnell Peninsula (SREP 17) be amended to delete, in Clause 6(1), the reference to Clause 8 of the Model Provisions and instead be replaced with a new clause relating to Tree and Bushland Vegetation Preservation and that the Department be requested to endorse the proposed amendment to the SREP 17 for public exhibition. That the draft Tree and Bushland Vegetation Preservation Order be endorsed for public exhibition. That the draft Local Environmental Plan, the amendment to SREP 17 and the draft Tree and Bushland Vegetation Preservation Order be publically exhibited concurrently for a period of 28 days.
10. On 5 February 2001, at a council meeting, the following resolutions were passed under the heading of "Development of a Consistent Tree and Bushland Vegetation Preservation Order for the Sutherland Shire": RESOLVED: That the Sutherland Shire draft Local Environmental Plan Menai Town Centre 1992 (Amendment 3) be endorsed for public exhibition, and the Department of Urban Affairs and Planning be advised in accordance with Section 54(1) of the Environmental Planning and Assessment Act 1979. That the Department of Urban Affairs and Planning be advised that Sydney Regional Environmental Plan No. 17 - Kurnell Peninsula (SREP 17) be amended to delete, in Clause 6(1), the reference to Clause 8 of the Model Provisions and instead be replaced with a new clause relating to Tree and Bushland Vegetation Preservation and that the Department be requested to endorse the proposed amendment to the SREP 17 for public exhibition. That the draft Tree and Bushland Vegetation Preservation Order be endorsed for public exhibition. That the draft Local Environmental Plan, the amendment to SREP 17 and the draft Tree and Bushland Vegetation Preservation Order be publically exhibited concurrently for a period of 28 days.
11. The draft TPO was subsequently exhibited.
12. On 14 May 2001 the council's Environment and Health Committee prepared another report to inform the council of: the issues raised in submissions received in response to the exhibition of the draft TPO; changes made to the draft TPO; and to outline the proposed publicity and marketing initiatives to implement the draft TPO, once gazetted.
13. In the section entitled "Background" the report noted that: Background Council, at its meeting of 5 February 2001 resolved to amend Sutherland Local Environmental Plan (LEP) - Menai Town Centre and Sydney Regional Environmental Plan No 17 - Kurnell Peninsula (SREP 17) to insert a new provision relating to the preservation of tree and bushland vegetation. Council also resolved to exhibit the draft Tree and Bushland Vegetation Preservation Order. The proposed Tree and Bushland Vegetation Preservation Order will provide for the consistent protection of trees and bushland across the Sutherland Shire.
14. The report opined that no amendment to the 2000 LEP was required to protect against the removal of native riparian vegetation because of the terms of the draft TPO that expressly prohibited the removal of native riparian vegetation and required any other relevant activity to have consent, and because the draft TPO applied to all land within the Shire (including Menai and Kurnell).
15. The report concluded that (emphasis added): Conclusion Council's current Tree Preservation Order currently does not protect areas of bushland vegetation, nor does it apply consistently across the Shire. The proposed amendments to Menai Town Centre LEP and SREP 17 include a consistent provision that will apply across the Shire and will enable the Order to be enforced. It is essential that the Order, once adopted, is promoted throughout the community to ensure effective implementation. Once the new Order is in place, a publicity and marketing campaign should be undertaken to ensure that the community understands the impacts of the new Order and so that its implementation is effective. The draft instruments and Order have been prepared and exhibited in accordance with State policies. Consultation has been undertaken with the appropriate authorities and internal Council Officers' and their comments have been taken into consideration. It is therefore recommended that Council resolve to proceed with the draft instruments and the Order, as amended, and to submit the plan to the Secretary of the Department of Urban Affairs and Planning for the plan to be made by the Minister.
16. Accordingly, the report recommended that (emphasis added): Report Recommendation: That pursuant to Section 68(4) of the Environmental Planning and Assessment Act 1979, as amended, draft Sutherland Local Environmental Plan - Menai Town Centre (Amendment 1) be submitted to the Secretary of the Department of Urban Affairs and Planning for the Plan to be made by the Minister. That pursuant to this, Council officers report on the plan to the Minister under Section 69 of the Act, utilising existing delegations. That the amendment to Sydney Regional Environmental Plan No 17 - Kurnell Peninsula be submitted to the Secretary of the Department of Urban Affairs and Planning for the amendment to be endorsed. That the draft Tree and Bushland Vegetation Preservation Order, as amended, take effect from the date of its advertisement in the Government Gazette and St George and Sutherland Shire Leader. That the initiatives outlined in the report under Publicity and marketing of the Tree and Bushland Vegetation Preservation Order be undertaken upon gazettal of the Order.
17. And on 21 May 2001, at a meeting of the council, the council passed resolutions that mirrored the recommendations made by the Environment and Health Committee on 14 May 2001 (emphasis added): Development of a Consistent Tree and Bushland Vegetation Preservation Order for the Sutherland Shire RESOLVED: (Rankin/Simpson*) That pursuant to Section 68(4) of the Environmental Planning and Assessment Act 1979, as amended, a draft Sutherland Local Environmental Plan - Menai Town Centre (Amendment 1) be submitted to the Secretary of the Department of Urban Affairs and Planning for the Plan to be made by the Minister. That the Council officers report on the plan to the Minister under Section 69 of the Act, utilising existing delegations. That the amendment to Sydney Regional Environmental Plan No 17 - Kurnell Peninsula be submitted to the Secretary of the Department of Urban Affairs and Planning for the amendment to be endorsed. That the draft Tree and Bushland Vegetation Preservation Order, as amended, take effect from the date of its advertisement in the Government Gazette and St George and Sutherland Shire Leader. That the initiatives outlined in the report under "Publicity and marketing of the Tree and Bushland Vegetation Preservation Order" be undertaken upon gazettal of the Order.

Statutory Framework

1. Section 371 of the Local Government Act 1993 states that: 371 What constitutes a decision of the council? A decision supported by a majority of the votes at a meeting of the council at which a quorum is present is a decision of the council.
2. Clause 13(2) to (6) of the 2000 LEP empowers the council to make a TPO. It stated as follows (emphasis added): (2) Where it appears to the Council that it is expedient for the purpose of preserving or securing trees and bushland vegetation in order to ensure the integrity of the natural environment for both residents of and visitors to Sutherland Shire, it may make a tree and bushland vegetation preservation order. (3) A tree and bushland vegetation preservation order may prohibit the ringbarking, cutting down, topping, lopping, pruning, removing, injuring or wilful destruction of any bushland vegetation, tree or trees specified in the order except with development consent or the permission of the Council. (4) A tree and bushland vegetation preservation order made in accordance with this clause may apply to any tree or trees, or to any specified class, type or description of trees or to bushland vegetation described in the order. (5) A tree and bushland vegetation preservation order may exempt any tree or any specified class, type or description of trees or bushland vegetation upon land described in that order. (6) A tree and bushland vegetation preservation order, and an amendment or repeal of any such order, has effect only when it has been published in the Gazette and in a local newspaper.

The Terms of the Impugned TPO

1. Clause 1 of the TPO is concerned with its application and states: Where does this Order apply? The Sutherland Shire Tree and Bushland Vegetation Preservation Order (this Order) applies to all land within the Sutherland Shire Local Government Area.
2. The purpose of the TPO is identified in cl 2 ("emphasis added"): 2. What is the purpose of this Order? This Order specifically prohibits the pruning, ringbarking, chopping, topping, lopping, removal, root damage, poisoning, under scrubbing, clearing, transplanting, injuring or otherwise damaging or wilfully destroying any tree or bushland vegetation described in clause 4 unless written consent is obtain in accordance with this Order.
3. Clause 5 details when the council's consent is required for activity on private land (emphasis added): 5. When is Council's consent required? …. (b) Private land An application for Consent to carry out the pruning, ringbarking, chopping, topping, lopping, removal, root damage, poisoning, under scrubbing, clearing, and transplanting any tree or bushland vegetation on private land shall be made on council's Tree and Bushland Vegetation Preservation Order. The application is to be made by the owner of the land on which the action is to be carried out, or by any person with the consent in writing of that owner. Any Consent issued under this Order shall lapse if the actions referred to in, or permitted by, the Consent have not been carried out within 12 months from the date endorsed on the Consent. A development consent granted pursuant to the Environmental Planning and Assessment Act 1979 may also constitute by express words a Consent by Council Prohibited Actions.

Did the Council Lawfully Make the TPO?

1. Benedict submitted that at no point did the council make, as it was required to do under cl 13(2) of the 2000 LEP, the TPO, and therefore, it was invalid.
2. In short, once the council had formed the threshold opinion under cl 13(2) of the 2000 LEP, two steps were mandated by cl 13 in order for the TPO to have a valid application. The first step was for the council to make a TPO pursuant to cl 13(2), and the second step was for the Order to be published in the Gazette and in a local newspaper, pursuant to cl 13(6) of the 2000 LEP. The making of a TPO therefore required a council resolution. Given that there was no suggestion that the council delegated its power to make a TPO, nor was there any suggestion that any officer employee of the council made the TPO pursuant to any delegated authority, a resolution was required under s 371 of the Local Government Act 1993 ("the LGA"), which provided that a decision of the council was constituted by decisions supported by a majority of the votes at the meeting of the council at which a quorum was present.
3. Benedict argued that none of the resolutions made by the council on 21 May 2001 satisfied the first step described above. In particular, resolution 4 was not sufficient to constitute that first step. That resolution was merely declaratory as the effect of cl 13(6) of the 2000 LEP and was only directed to satisfaction of the second step referred to above. Both steps were conditions precedent for the coming into force of a valid TPO and it was not permissible to elide the making of the Order with the taking of subsequent steps to advertise it in accordance with cl 13(6) to ensure that it came into effect (Tauszik v Gosford City Council [2006] NSWCCA 193; (2006) 146 LGERA 428 at [20]-[26] per Tobias JA).
4. In other words, there was no council decision which made the TPO. Rather, there was a resolution that the draft TPO take effect from the date of its advertisement, and this was not enough.
5. Whether or not the TPO has been made for the purposes of cl 13(2) of the 2000 LEP will depend, therefore, upon the proper construction of both cl 13 and the resolution of 21 May 2001.

The Interpretation of Subordinate Legislation

1. The general principles relating to the interpretation of primary legislation (Acts of Parliament) are equally applicable to the interpretation of subordinate legislation, for example, cl 13 of the 2000 LEP and the TPO (Collector of Customs v Agfa ­- Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398, Master Education Services Pty Ltd v Ketchell [2008] HCA 38. (2008) 236 CLR 101 at [19], Environment Protection Authority v Schon G Condon as liquidator for Orchid Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149; (2014) 86 NSWLR 499 at [43] and [44] and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 at [44]-[47]).
2. Thus, the task of construction must begin with the consideration of the text itself with recourse to its context, which includes the general purpose and policy of a provision, and of the enactment itself. The determination of the purpose of the particular provision or statute may be found not only in an express statement of the purpose in the statute itself, but also by reference to textual and structural indicators, and where appropriate, by reference to extrinsic material. The task is one of ascertaining the objective, and not the subjective, intention of those who promulgated the legislation (see generally the principles summarised in Commissioner of Taxation v Consolidated Media Holdings (ACN 009 071 167) Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39], Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 379 at [23]-[26], Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473 at [65]-[66] and Thiess v Collector of Customs [2014] HCA 13; (2014) 250 CLR 669 at [22] and [23]).
3. Having said this, it is legitimate to have regard to the fact that subordinate legislation is generally less carefully drafted than primary legislation and may therefore be construed having regard to more practical considerations, rather than by a rigorous examination of its language as might be more appropriate when construing an Act of Parliament.
4. Hence as stated in Schon (at [44]): 44. There is one further proposition of construction consequent upon cl 6 being delegated legislation. It is legitimate to have regard to the fact that regulations are less carefully drafted, and less keenly scrutinised, than primary legislation. The last three editions of Francis Bennion's work on Statutory Interpretation have observed that "the quality of drafting tends to be lower in the case of delegated legislation": see now O Jones, Bennion on Statutory Interpretation (6th ed 2013), p 238. In Liversidge v Anderson [1941] UKHL 1; [1942] AC 206 at 223, Viscount Maugham said, of an argument resembling that of the EPA, that (references omitted): "Orders in Council making regulations pursuant to an Act of Parliament do not in general receive the same attention and scrutiny as statutes, and it is important to remember that, although they may be annulled, they cannot be amended in either House, so that errors in language, if detected, cannot be corrected. There are, of course, no three readings and no committee state in either House. In my opinion, it would be a mistake to attribute the same force to an alteration of language in an amending Order in Council as in an amending statute."
5. This approach has been applied in decisions such as Driscoll v J Scott Pty Ltd (1976) 36 LGRA 159 (at 164), Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316 (at [37]) and Telstra Corporation Ltd v Australian Competition and Consumer Commissioner (2008) 176 FCR 153 (at 194).
6. Two further principles of construction are significant in the context of the present challenge. The first is that where subordinate legislation is open to more than one construction, one of which would be to bring the subordinate legislation within power whereas the other would render it invalid, the first is to be preferred (the maximum ut res magis valeat quam pereat) (see Birch v Australian Mutual Providence Society [1906] HCA 51; (1906) 4 CLR 324 at 343 per Barton J, Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977 at 983, Air Services Australia v Canadian Airlines International Limited [1999] HCA 62; (1999) 202 CLR 133 at [229]-[232] and [240] per McHugh J and at [408] and [419] per Gummow J, Public Service Association at [48], Schon at [64] and s 32 of the Interpretation Act 1987). Of course, this does not give rise to a judicial fiat to impermissibly rewrite statutory instruments that are ambiguous or uncertain so as to avoid inevitable invalidity (Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 370-371 per Dixon J).
7. Second, and by analogous application, is the principle that by-laws made by local councils should be construed benevolently (Kruse v Johnson [1898] 2 QB 91 at 99, Ex parte Grinham; Re Sneddon (1959) 61 SR (NSW) 862 at 870 per Herron J and Southorn v Jovanovic (1987) 63 LGRA 277 at 282).

Principles of Construction Relating to Council Resolutions

1. Although resolutions represent the formal embodiment of the decisions of council's, it would be erroneous to construe them as if they were akin to legislation, whether primary or subordinate. They are not. Resolutions and decisions made by local councils, even if passed as a measure to achieve legislative change (for example to make a TPO or to amend the 2000 LEP), are not themselves legislative, but are administrative in character (Resort Management Services Ltd v Noosa Shire Council (1993) 80 LGERA 265 at 269 per Ambrose J).
2. As was observed in Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide ((1975) 11 SASR 504 at 520 per Wells J): The arguments advanced by Mr Prior in support of his contention that at least one of the two vital reasons of June 1972 and October 1973 was invalid were avowedly technical, and for the most part rested upon a strict construction of the resolutions referred to. True it is that resolutions represent the formal embodiment of decisions of the Council, but I believe it would be a mistake to read them as if they were acts of legislation. I must bear in mind that, for the most part (as their wording often evidences) they are formulated on the spur of the moment, and bear much the same sort of relationship to debates in Council as propositions formulated by counsel in court bear to the dust and conflict of forensic strife; it is essential, therefore, to look at the circumstances in which the resolution or proposition was made if it is to be given its fair and natural meaning. I am of the opinion, too, that a court should not be too ready to attribute to a Council an intention to contradict itself, or to pass inherently inconsistent resolutions; and that if it is possible, by a not unreasonable construction to harmonize two or more apparently conflicting resolutions, then that is the construction that should be adopted. It would, accordingly, be misleading to rely only on the bare words of a resolution disengaged from the events that lead to, and resulted from, its being passed, and to look for unreason rather than for reason.
3. His Honour's dictum does not appear to have been applied in New South Wales in the context of construction of council resolutions but it has been endorsed for the purposes of construing corporate resolutions (J Aron Corp v Newmont Yandal Operations Pty Ltd [2005] NSWSC 238 at [122]). In Yandal, although unnecessary to do so given the unambiguous nature of the text of the resolution in question, Austin J did not eschew the proposition that it was permissible to have regard to extrinsic material in the construction of a resolution passed by creditors (at [123]). In that case his Honour held, in any event, that the "matrix of external circumstances", including minutes of the meeting, external transcripts and evidence from the chairperson to the meeting, were nevertheless relevant.
4. In my view, the approach espoused by Wells J in Myer appears entirely orthodox and is, by analogy, in conformity with the use to which extrinsic material may be had in statutory interpretation (Public Services Association at [47] and the authorities cited thereat).
5. Whereas generally recourse to extrinsic material to construe a contract (Codelfa Constructions Pty Ltd v State Rail Authority (1982) 149 CLR 337 at 352, Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2009) 240 CLR 45 at [39] and Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35]), or a development consent (Allandale Blue Metal Pty Ltd v Road and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 102 at [43] - [46]), is limited, a bare resolution of a council, unlike either of those documents, does not, of itself, purport to embody rights or liabilities that demand the same level of certainty as to content and meaning. As such, those authorities have little relevance to the construction of council decisions.
6. In my opinion, therefore, it is permissible to have regard for the circumstances surrounding the making of the 21 May 2001 resolutions.
7. While the council initially relied upon s 45 of the Interpretation Act and the presumption of regularity in support of its argument that the TPO had been, as a matter of procedure, validly made, this was subsequently (and correctly) abandoned. The TPO is not a relevant "instrument" for the purpose of that provision (see s 45(2) of the Interpretation Act and Flaherty (On behalf of Strathfield Council) v Columbia Nursing Homes Pty Ltd [2007] NSWLEC 148; (2007) 152 LGERA 383 at [27] per Jagot J). Moreover, even if s 45 did apply, resolution 4 constitutes sufficient "evidence to the contrary" to displace the presumption contained in that provision and any common law presumption of regularity (assuming it was applicable in this instance).
8. Construed literally, and in ignorance of its context, in passing resolution 4 the council appeared to do no more than resolve that the draft TPO take effect from the date of its publication in the Gazette and the St George and Sutherland Shire Leader. But when regard is had to the circumstances in which the resolution was passed, it becomes clear, in my view, that the resolution can also be reasonably construed as the council agreeing, and implicitly resolving, to make the TPO.
9. First and significantly, cl 13 of the 2000 LEP, and in particular cl 13(2), is silent as to how an order under that clause is to be made. It leaves the manner of its making up to the council. As a collegiate body, the council can make an order in more than one way provided it satisfies the requirement that the order has been made by the council in its capacity as that body.
10. The Macquarie Dictionary (on-line edition) and the Oxford English Dictionary (on-line edition), both define the verb "make" using similar attributes such as, inter alia, "to bring into existence", "to create", "to produce", "to establish", to produce", or "to cause to be".
11. Hence, having regard to the factual framework informing the passing of the resolutions on 21 May 2001, in my opinion, as at that date, the council had created, established, or bought into existence the TPO. It must be recalled that by 21 May 2001: 1. amendments had been drafted by the council, and endorsed for public exhibition, to change the Menai LEP for the purpose of making the draft TPO; 2. as amended, the draft Menai LEP had been submitted to the Secretary of the Department of Urban Affairs and Planning ("the Secretary") to be made by the Minister; 3. an amendment to SREP 17 had been drafted by the council for the purpose of making the draft TPO; 4. at amendment had been submitted to the Department of Urban Affairs and Planning for it to be endorsed by the Secretary; 5. a draft TPO had been prepared to replace the existing TPO; 6. the draft TPO had been endorsed for, and subsequently publically exhibited; 7. the draft TPO had been amended in response to issues raised in submissions consequent upon its exhibition; 8. the draft TPO had been considered by the council or its committees on four occasions (29 January, 5 February, 14 May and 21 May 2001); 9. it had been agreed that the draft TPO would take effect from the date of its gazettal and its publication in the local newspaper; and 10. the proposed publicity and marketing initiatives to implement the draft TPO upon gazettal, had been agreed to by the council.
12. In addition, as at 26 July 2001, the TPO had been published in the Gazette (on 13 July 2001) and advertised in the St George and Sutherland Shire Leader (on 26 July 2001).
13. These steps were all objectively consistent with the council having made, as at 21 May 2001, the TPO. The subsequent gazettal, publicity and marketing campaign that occurred after 21 May 2001, is rationally explicable only on this basis. In other words, it was the 'adoption' of the TPO that necessitated its "promotion throughout the community to ensure effective implementation" (see the "Conclusion" to the report dated 14 May 2001).
14. Second, although not expressly stated, it is necessarily implicit in resolution 4 that the draft TPO had been made by the council at the meeting on 21 May 2001. Were it otherwise, there would have been little utility in stating that the TPO took effect from the date of its gazettal and advertisement. If, as Benedict submitted, resolution 4 was no more than a statement as to the effect of cl 13(6) of the 2000 LEP, it had little, if any, work to do. Just as existing statutory provisions should be construed as serving some purpose, so too should council resolutions described in meeting minutes, even if not legislative in character. On the construction afforded by Benedict, the operation of resolution 4 would be rendered otiose in light of cl 13(6) of the 2000 LEP.
15. The suggestion from Benedict that the work resolution 4 did was confined to conveying information as to when the TPO would take effect ignores the word "That" at the commencement of the resolution qualifying the words "take effect", and the subject-matter of the resolution, viz, the TPO "as amended". Both qualifications are strongly suggestive of a past event, namely, an instrument that has already agreed to be made by the council.
16. Third, the conclusion arrived at above as to the proper construction of resolution 4 is reinforced by the report of the council's Environment and Health Committee on 14 May 2001, which concluded that it was "recommended that the Council resolve to proceed with the draft instruments and the Order, as amended, and to submit the plan to the Secretary of the Department of Urban Affairs and Planning for the plan to be made by the Minister". The formal recommendations set out in that report particularised the steps required to be undertaken by the council to give effect to this more general recommendation. Those specific recommended steps were in identical terms to the resolutions passed on 21 May 2001, including resolution 4. There being nothing more required of the council on 21 May 2001 than to pass the very measures recommended on 14 May 2001 in order to adopt, as it objectively intended to do, the TPO, it appears clear that in passing those resolutions, including resolution 4, the council was making, and in fact made, the TPO.
17. Support for this reasoning may be found in the analogous decision in Willing v Young (1974) 34 LGRA 162. In that case, the appellant was charged with, and convicted of, parking his car in a prohibited area contrary to the Local Government Act 1934-1972 (SA). The special magistrate had found that the vehicle was standing in an area described in the South Australian Government Gazette as a prohibited area. There was evidence that no resolution had been passed by the council in the terms of the prohibition set out in the Government Gazette. Rather, a report of the Highways and Traffic Committee of the council had been received at the council meeting in question and the council had merely adopted that report. Section 725 of the Local Government Act made the gazettal of the prohibition conclusive evidence of the council's passing of the resolution, and the appeal failed. However, the Court went on to observe that even absent publication in the Gazette (at 167): In any event, we are satisfied that what took place at the Council meeting amounted in law to the passing of the resolution by the Council; and that even on the evidence submitted by the appellant [the failure to pass the resolution], the resolution notified in the Gazette was duly passed. The formal adoption by Council of a committee report which in terms recommended to Council the passing of a resolution in law has the same effect as a resolution by Council which sets out in extensor the contents of the recommendation.
18. When regard is had to the material before the council prior to the meeting on 21 May 2001, all of which recommended the making of a new TPO in terms almost identical to the TPO subsequently adopted by the council, a finding premised on the terms of the resolutions passed on that day, especially resolution 4, that the council intended to, and in fact did, make the TPO is neither fanciful nor unreasonable. In the present case, the council formally passed the resolutions giving effect to the recommendations of the Environment and Health Committee of the council to adopt the TPO and to implement the necessary measures to create, establish, or bring into existence the TPO.
19. Benedict further submitted that because of the inability of the TPO as at 21 May 2001 to fulfil its primary objectives of, first, applying to all land within the council's local government area (see cl 1 of the TPO), and second, applying to bushland vegetation in addition to trees, it could not have been the objective intention of the council to make the TPO at that meeting.
20. The dual objectives of the proposed TPO could not be achieved because at that stage: 1. the Menai LEP did not contain any clause allowing the making of a TPO; 2. SREP 17, as it then stood, did not confer power to make a TPO extending to bushland vegetation; and 3. neither the Minister nor the Secretary had made the necessary amendments or given the necessary endorsements to cure these threshold impediments.
21. The council was plainly aware of this fact at its meeting on 21 May 2001, which is why it resolved on that date to submit the proposed amendments to the Menai LEP to the Minister and to submit the proposed amendments to SREP 17 to the Secretary (see resolutions 1 and 3). Benedict therefore argued that, objectively, the council did not resolve to make the TPO on 21 May 2001 because to do so would have been premature given that it was impossible to make a TPO covering the entirety of the Sutherland Shire and applying to bushland vegetation. The passing of a resolution purporting to make the TPO on 21 May 2001 would have been contrary to the expressed purpose of the council in adopting a new TPO, which was unlikely to have been the intention of the Council.
22. But notwithstanding that neither the endorsement of SREP 17, nor the amendments to the Menai LEP, had been effected as at 21 May 2001, this was, in my opinion, for the purposes of this contention, immaterial. These measures did not prevent the council from making, in the sense of creating, establishing, or bringing into existence the TPO. Rather, the absence of these steps having been being completed merely affected the ability of the TPO, once made, to apply to the entirety of the council's local government area (discussed further below).
23. Although the council was undoubtedly aware of these outstanding matters, this knowledge did not prevent the council from making, as a matter going to the construction of resolution 4, the TPO on that date. Just as the ability of the council to make the TPO was not fettered by the fact that it would not come into effect until after it had been gazetted and advertised, nor was the capacity of the council to make the TPO hindered by the fact that until the Menai LEP was amended and the SREP 17 changes endorsed, its intended application would be circumscribed. The ability of the council to make the TPO was not contingent upon the scope of its immediate application.
24. To conclude, to construe resolution 4 in the manner posited above is both sensible and fair and does not give rise to a meaning to the words of the resolution which cannot reasonably be borne by it. It does not result, contrary to the assertion of Benedict, in an impermissible redrafting of the resolution by the Court. This contention must therefore be rejected.

Was the TPO Invalid Because as Made on 21 May 2001 it Did Not Cover all of the Sutherland Shire Contrary to Clause 1 and Did Not Cover Bushland Vegetation?

1. By its second contention Benedict submitted that if the council purported to make a TPO on 21 May 2001 in terms which included cl 1 of that instrument, then the TPO was invalid because the objectives contained in that clause could not be satisfied as at that date by reason of the outstanding threshold impediments referred to above, particularly because the geographical operation of the TPO would be confined contrary to the clear terms of cl 1 of the Order. Furthermore, to either wholly sever or read down cl 1 to render it consonant with the operation of the TPO as at 21 May 2001, would necessitate an impermissible exercise in re-writing the TPO.
2. There are at least two reasons why this argument cannot be accepted. First, as explained above, this contention conflates the ability of the council to make the TPO, with the coming into effect of the TPO across the whole of the local government area. As at 21 May 2001. The council had the power to make the TPO but it did not come into full effect in conformity with cl 1 until the Minister had made the amendments to the Menai LEP and the Secretary had endorsed the changes to SREP 17. That this may have been contrary to the stated intention of the council in making the TPO does not affect the council's power to make the instrument or render it invalid.
3. The inherent difficulty with Benedict's logic is illustrated by the fact that, in any event, as at 21 May 2001, the TPO, although made, was not yet in force because it had been neither gazetted nor advertised as required by cl 13(6) of the LEP. Assuming for present purposes a resolution had been passed expressly stating that the council would adopt or make the TPO on that day, the fact that the TPO was not yet in effect would not render the resolution, or the instrument, invalid.
4. Second, as the council submitted, properly characterised, cl 1 of the TPO is an application provision and not a precondition to the valid exercise of power by the council. It selects an assemblage of subject-matter, viz, "all land within the Sutherland Shire Local Government Area", and no more. In other words, it is not so integral to the work of the prohibition that it cannot be read down to apply to only that part of the local government area to which the TPO applies at any given time. Provided that, absent judicial legislation, the TPO had some work to do consequent upon the reading down of cl 1, the instrument is not invalid.
5. It is a fundamental cannon of construction that legislatures intend to enact legislation that is valid and not invalid (Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at [28]). Corollary to this basic principle is the doctrine of severability, that is to say, where a provision of a subordinate legislation (cl 1 of the TPO) is not authorised by the empowering legislation (although not articulated by Benedict, presumably cl 13(2) of the 2000 LEP), the provision may be severed or read down so as to preserve the validity of the balance of the subordinate legislation.
6. In Harrington v Lowe the plurality of the High Court articulated the test as follows ([1996] HCA 8; (1996) 190 CLR 311 at 328): A valid operation…might be preserved after textual surgery by operation of the "blue pencil" rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing 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 the subject matter dealt with from what it would otherwise be.
7. While at common law it was presumed that subordinate legislation was to read as a whole and indivisibly (Harrington at 326), this position has been reversed by s 32 of the Interpretation Act, which provides that: 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.
8. In Bank of New South Wales v Commonwealth Dixon J summarised the effect of the statutory reversal and what was necessary to displace the application of the new presumption it created ((1948) 76 CLR 1 at 371): To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of the part, it must sufficiently appear that the invalid provision forms part of an inseparable context.
9. Nevertheless, the courts have strongly cautioned against construing the relevant provision, whether through the device of reading down or expunging, where the result is to create a provision that the legislating body plainly did not intend. This will be a matter of construction having regard to the extent of the proposed change and the context of the impugned provision, including its legislative purpose. The question is whether "the Court is carrying out the permissible function of the interpretation of a statute (read in the context of the relevant Acts Interpretation provision), or is the Court itself making legislation?" (Sportodds Systems Pty Ltd v New South Wales [2003] FCAFC 237; (2003) 133 FCR 63 at [19]. See similarly Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 372 and Pidoto v Victoria (1943) 68 CLR 87 at 100).
10. There is no doubt that the intention of the council in promulgating the new TPO was so that it would, unlike its predecessor, cover the entirety of the Sutherland Shire. This was a fundamental reason for its creation. So much is evident from the various reports and recommendations of the Environment and Health Committee of the council that were before it. It is this objective that is embodied in cl 1 of the TPO.
11. But in my opinion, however, assuming that the threshold matters required to be undertaken by the Minister and the Secretary were not carried out, the TPO would nevertheless be valid upon cl 1 being read down to cover only those areas covered by the 2000 LEP and SREP 17 as those environmental planning instruments stood prior to their amendment. Construing cl 1 in this manner would not leave the TPO in a radically different form to that made. The prohibition would still have significant work to do, albeit less than that envisaged by the council.
12. While Benedict invoked the objects of the EPAA (in particular, those stated in s 5(a)(i), (ii) and (vi) of that Act), to submit that to read down cl 1 in the manner suggested above would be contrary to the purpose of that Act, equally, it cannot be said that those objects would not be assisted by the striking down of the entirety of the TPO.
13. For these reasons, the second contention must be dismissed.

Are the Terms of the TPO Outside the Scope of the LEP?

1. The third contention raised by Benedict is, in effect, a challenge to the validity of the TPO on the basis that it deals with a subject beyond the scope of the empowering provision (the 2000 LEP) upon the authority of which it was purportedly made, or the so-called 'simple ultra vires'.
2. According to Benedict, because cl 13(3) of the 2000 LEP specified with particularity the content of any order made under that clause both in respect of the terms of the general prohibition contained within it, and also in respect of the content of the exceptions from the prohibition, that is to say, "except with development consent or the permission of the Council", the prohibition contained in cl 2 of the TPO was, when read together with cl 5 ("by express words"), beyond the scope of cl 13 of the 2000 LEP.
3. The invalidity is said to arise in two ways: first, the effect of cls 2 and 5 of the TPO is to abrogate ancillary use rights to remove or damage trees and bushland vegetation in cases where a defendant is legitimately carrying out the terms of a valid development consent. This impermissibly narrows the ambit of the exceptions to the general prohibition contained in cl 13(3) of the 2000 LEP. And second, because the exceptions do not permit oral relaxation of the proscription as contemplated by cl 13(3). Both are elaborated upon below.
4. Benedict submitted that while cl 13(3) of the 2000 LEP left some matters concerning the ambit of the TPO for the council to specify in its discretion (for example, what trees to preserve and protect), the form of the statement of prohibition, including its exception, was deliberately prescribed. Therefore, in order to be within power, it was necessary for both the prohibition and the exception to that prohibition contained in cl 2 of the TPO "to be stated in the terms of clause 13(3), or, if not stated in identical terms, stated in terms to the same effect." No authority was cited by Benedict in support of this proposition.
5. Turning to the first way in which Benedict asserts cl 2 of the TPO exceeds the power conferred on the council in cl 13(3) of the 2000 LEP, this is erroneously premised on a literal reading of the exception contained in cl 2 as qualified by cl 5. Such a construction ought not, in my opinion, be preferred over a purposive construction that would preserve all rights accruing to a proponent upon the granting of a development consent. There is certainly no language present in either the TPO that would permit the inference to be drawn that the council intended for these rights to be extinguished in cl 2.
6. Having regard to the principles of construction of subordinate legislation outlined above, and the principle of legality (see the description of this principle in Lee v New South Wales Crime Commission [2013] HCA 39 at [29] per French CJ, [126] per Crennan J, [171]-[173] and [307]-[317] per Gageler and Keane JJ), no legislative intention can be divined on the part of the council with the requisite "irresistible clearness" to infringe in any way the full panoply of rights conferred by the granting of a development consent (Lee quoting at [307] Marshall CJ in United States v Fisher 6 US 358 at 390 (1850)).
7. In Lee the High Court noted the broad application of the principle of legality in the following terms (at [313]): 313. Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
8. Favouring an interpretation of cls 2 and 5 that promotes the validity of the TPO, the exercise of properly characterised ancillary rights (and, for that matter, any other right, including the duration of the development consent: see cl 5 of the TPO) to carry out development concomitant upon the grant of approval by the council that would otherwise be caught by the general prohibition in cl 2, is preserved. In other words, if the council intended to prohibit activities that would ordinarily be permissible pursuant to the grant of a valid development consent (or some other form of permission), it would have been incumbent upon the council to expressly and unambiguously state this in the TPO.
9. Turning to the second way in which it is asserted that the council was not empowered to make the TPO under cl 13 of the 2000 LEP, there is nothing upon the proper construction of cl 13(3) of that LEP that would not allow the council to restrict the development consent or permission given by it to the prohibition against removing or damaging trees or bushland vegetation, to written consent or permission. This is no more than an incident of the power contained in cl 13(2) of the 2000 LEP to make a TPO which appears "expedient" to the council for the purpose identified in that sub-clause.
10. The scope of a provision which empowers subordinate legislation that "expedient" for the giving effect, to or the carrying out of, the objects of an enactment was explained in Shanahan v Scott as follows ((1957) 96 CLR 245 at 250 per Dixon CJ, Williams, Webb and Fullagar JJ): Such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.
11. In short, "you may complement, but you may not supplement, a granted power" (Carbines v Powell (1925) 36 CLR 88 at 92 per Isaacs J, quoted in Shanahan at 254).
12. Neither cl 2 nor cl 5 unlawfully widens or supplements the power of the council to make a TPO under cl 13(2) or (3) of the 2000 LEP. That the permission or consent must be in writing, is, on any view, a matter of expediency having regard to the administrative chaos that would ensue if councils were permitted to grant exceptions to the prohibition contained in cl 2 of the TPO orally. It is not difficult to foresee the likely disputes that would arise as to the fact, scope and content of any verbal permission, exposing both the council and recipient of the consent to potential legal liability. There are sound and common sense reasons why written consent is required pursuant to cl 2 of the TPO.
13. Against this, Benedict argued that an exception founded upon the provision of a verbal consent was needed in cases of urgency, for example, the removal of hazardous vegetation. However, leaving aside the ability of sourcing, in most instances, writing implements and paper, in an era of email, text messages, and other forms of instantaneous electronic communication, it is almost inconceivable that written consent could not be provided by the council in a manner satisfying cl 2 of the TPO.
14. In my opinion, the impugned provisions of the TPO the subject of complaint by Benedict are not matters beyond the power of the 2000 LEP.

Did the 2006 LEP Repeal the 2000 LEP Thereby Rendering the TPO Inoperative During the Relevant Charge Periods?

1. In 2006 the 2000 LEP was replaced by the 2006 LEP.
2. Clauses 4 and 7 of the 2006 LEP provided that: 4 Land to which plan applies This plan applies to all land in Sutherland Shire, except for the following land: (a) land to which Sydney Regional Environmental Plan No 17-Kurnell Peninsula (1989) applies, (b) land identified on the map as "deferred matter", being land that is excluded from this plan under section 68 (5) or 70 (4) of the Act, (c) land identified on the map as "Excluded". The land identified on the map as "Excluded" comprises the following land: (a) certain land at West Menai, (b) the land shown edged heavy black on the map marked "Map 26: Woronora Emergency Access Road, between Bundanoon Road, and the Crescent" in Schedule 7 to the former Sutherland Shire Local Environmental Plan 2000, (c) the land shown with heavy edging on the map marked " Map 32 Cronulla Sutherland Leagues Club, Captain Cook Drive " in Schedule 7 to the former Sutherland Shire Local Environmental Plan 2000 . 7 Repeal of other local environmental plans (1) Sutherland Local Environmental Plan-Menai Town Centre 1992 and Sutherland Shire Local Environmental Plan 2000 are repealed. (2) Despite subclause (1): (a) Sutherland Local Environmental Plan-Menai Town Centre 1992 and Sutherland Shire Local Environmental Plan 2000 , as in force immediately before the commencement of this plan, continue to apply to land referred to in clause 4 (b) and (c) to the extent to which they applied to that land immediately before that commencement, and (b) any development application lodged before the commencement of this plan, but not finally determined before its commencement, is to be determined as if this plan had been exhibited under section 66 of the Act but had not been made.
3. As was evidenced by the maps attached to the 2000 and 2006 LEPs before the Court, the land the subject of the charges was "land" that was identified as within "Excluded" zones for the purposes of cls 4 and 7 of the 2006 LEP.
4. By its fourth contention, Benedict asserts that even if the TPO was made on 21 May 2001, having regard to the nature and terms of the Order, and by reason of cl 7 of the 2006 LEP, the TPO ceased to have any valid operation upon the repeal of the 2000 LEP by the 2006 LEP.
5. An analysis of the terms of the 2006 LEP clearly indicate that while it repealed the 2000 LEP, it did not do so in relation to the land the subject of the relevant charges.
6. The effect of the word "despite" in cl 7(2) of the 2006 LEP is that cl 7(1) must be read subject to cl 7(2) (Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346 at [97]-[105] per Biscoe J). And the term "continue" in cl 7(2)(a), when read in conjunction with cl 4 of the 2006 LEP, means that operation of the 2000 LEP insofar as it applied to the subject land was not disturbed by the coming into force of the 2006 LEP. This was because, as found above, the subject land fell expressly within the category of land that was "excluded" from the repeal.
7. Accordingly, the 2000 LEP, and the TPO, continued to operate in respect of the subject land during the charge periods.
8. Nonetheless, Benedict argued that notwithstanding the continued operation of the 2000 LEP to the excluded land, the repeal of the 2000 LEP across "the vast majority of land" in the Sutherland Shire had the effect that the TPO "as a whole could no longer have a valid realm of operation". This was because of cl 1 of the TPO that applied the instrument to "all the land within the Sutherland Shire Local Government Area".
9. It therefore followed from the express wording of cl 1 of the TPO, and because of cl 13(2) of the 2000 LEP which required the council to form the jurisdictional opinion that it was expedient "to ensure the integrity of the natural environment for both residents of and visitors to Sutherland Shire", that by reason of the repeal the TPO could no longer apply to the entire local government areas as the council plainly intended, and the 2006 LEP had therefore rendered the TPO inoperative. Put another way, if, because of the repeal, the TPO could no longer apply to the whole of the Sutherland Shire, it could no longer apply at all.
10. However, for the reasons given above in respect of contention two, cl 1 can, and should, be read down to apply only to land to which it can validly apply. That is to say, cl 1 should be interpreted as applying only those areas that are "excluded" from the repeal of the 2000 LEP by the 2006 LEP.
11. As discussed above, there is nothing about the application clause embodied in cl 1 of the TPO that is so integral to the work to be carried out by the rest of the Order that would prevent it from being read down so as to preserve the validity of the TPO. To follow such a course is not to engage in impermissible judicial legislation. Rather, it is to construe the instrument as having application only to the extent that it may validly do so.
12. Contrary to the assertion of Benedict, as the council correctly, in my view, submitted, the fact that there are penal consequences for a breach of a subordinate instrument is not material in circumstances where the only persons adversely affected by the reading down of the instrument would be those breaching the prohibition contained in it on land to which it applies.
13. It is, moreover, not the case, as was suggested by Benedict, that after the commencement of the 2006 LEP, the TPO criminalised the removal or injury of trees and bushland vegetation on land to which the TPO no longer applied. It could not and did not.
14. The contention must be rejected for the reasons given above.

Conclusion and Orders

1. Having been unsuccessful in the contentions Benedict raised in its collateral attack on the TPO, the challenge must be dismissed.
2. The costs of the challenge are to be reserved. The exhibits are to be returned.

Amendments 19 June 2015 - Coversheet amendment DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2015