Vitality Care Pty Ltd v Director-General, Department of Natural Resources

Vitality Care Pty Ltd v Director-General, Department of Natural Resources - [2006] NSWLEC 506 - NSWLEC 2006 case summary — Zoe

[46]

28 In Esber v Commonwealth of Australia (1991) 174 CLR 430 a majority of the High Court held that the transitional provisions of a repealing statute preserved the entitlement which had accrued under the previous law to proceed with the review of a decision rejecting an application to redeem weekly compensation payments with a lump sum. It was held at 440: If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v Minister [The Winbar Claim] (1988) 14 NSWLR 685 at 694 : The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional. Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely ' a power to take advantage of an enactment ' ( Mathieson v Burton (1971) 124 CLR 1 at 23, per Gibbs J). Nor was it a mere matter of procedure; ( Newell v The King (1936) 55 CLR 707 at 711-712); it was a substantive right... Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, ' although that right might fairly be called inchoate or contingent ': Free Lanka Insurance Co Ltd v Ranasinghe , [1964] AC 541 at 552. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act. 29 In my opinion, a development consent does not, of itself, create a right or privilege of the type referred to in s 30(1)(c). The High Court has so held in relation to an indistinguishable provision: Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270. In that case the High Court was concerned with the interpretation of cl 65 of the Warringah Scheme Ordinance which relevantly provided that the revocation by a certain statutory provision of an applicable planning scheme "shall not affect … any right, privilege, obligation or liability acquired, accrued or incurred under that scheme or under the Act in relation to that Scheme". Stephen J, with whom McTiernan and Walsh JJ agreed, held at 293-294: … there are two features of consents granted under schemes such as those here in question which appear to me to make it inappropriate to speak of them as conferring either a ' right ' in the narrow or wide sense or a ' privilege '. First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor; I would think that a mere trespasser could justify his use of land in terms of town planning controls by reference to some prior consent successfully applied for by a prior lawful occupier. For this reason it appears to me to be inappropriate to regard such a consent as conferring rights or privileges in the sense in which I understand those words to be used in cl. 65 (1) (b). It is well established that in provisions such as cl. 65 (1) (b) no alleged right can be protected so long as it is one common to the community as a whole. As it was said in Abbott v. Minister for Lands [1895] A.C. 425, at p. 431, there must be an ' act done by an individual towards availing himself of that right ' before it can be said to be ' a ` right accrued ' within the meaning of the enactment' . What are protected are rights which have been acquired by or have accrued to an individual; consents under the present schemes do not confer rights of this character.

[49]

31 An analogy may be drawn with Dubler Group Pty Ltd v Minister for Infrastructure, Planning & Natural Resources (2004) 137 LGERA 178 (CA). There, the Court of Appeal held that the proponent of a development application had a right, within the meaning s 30(1)(c) of the Interpretation Act, to have a development application determined in accordance with the law at the time of the lodgement of the development application because of the existence of cl 33 of State Environmental Planning Policy No 53 - Metropolitan Residential Development (SEPP 53). Clause 33 provided as follows: "A provision of this Policy does not apply to or in respect of the determination of a development application made, but not determined, before the commencement of the provision". Clause 33 in Dubler, I think, is analogous to s 23 of the NVC Act. SEPP 53 was in force when in May 2003 the appellant lodged with a council an application for a development consent. The council did not make a timely determination of the application and in August 2003 the appellant appealed to the Land and Environment Court against the deemed refusal of the application. The proceedings were part heard when, in December 2003, SEPP 53 was amended to exclude from the operation of its Part 3 bush fire prone land and land where there was an evacuation risk in the event of bushfire. The relevant land in this case was so affected. The amendments also introduced cl 44 which provided that, despite cl 33, the amendments extended to development applications made, but not finally determined before the commencement of the amendments. The applicants invoked s 34(4)(b) of the EPA Act which relevantly provided: "(4) the amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect: … (b) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument…". The Court of Appeal held that the appellant had an acquired or accrued right or privilege which, by force of s 34(4)(b), the amendments did not affect. Giles JA, with whom Sheller and Santow JJA agreed, held at 185-86 [25] - [30]: …Clause 33 was concerned with the effect of new provisions of SEPP 53. New provisions included a provision negating the application of cl 33 to applications for development consent made but not finally determined. If cl 33 conferred a right within s 34(4)(b) of the Act on a person who had made a development application, such a provision which affected the right would be ineffective. Whether cl 33 conferred such a right called for a consideration of the kind described by Hope JA in NSW Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act & Western Lands Act (The Winbar Claim (No 3)) (1988) 14 NSWLR 685 at 691, 66 LGRA 265, a consideration " of the nature of the right which the Act confers, and of the effect of a repeal or amendment of a statute upon such a right ".

[58]

35 The question remains whether the NV Act evinces a contrary intention. The operation of the presumption that accrued or acquired rights are unaffected by a repealing statute is, by virtue of s 30(1)(c) of the Interpretation Act, expressly subject to the appearance of a "contrary intention". Therefore, if the provisions of the NV Act are clearly inconsistent with the survival of the accrued or acquired right, those provisions are controlling, and any presumption erected by s 30(1)(c) is displaced: see Attorney-General for the State of Queensland v Australian Industrial Relations Commission (2002) 213 CLR 485 at 505 [52]. The principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. The greater the unfairness, the less likely it is that Parliament intended the new Act to apply and, conversely, the more it is to be expected that Parliament will make it clear if it is, indeed, intended that that new legislation is to apply: Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557 at 571-572 [55] - [59] per Spigelman CJ. The Chief Justice cited a number of authorities including Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. In that case Lord Rodger of Earlsferry at 879-880 [193] - [196] quoted the statement of the presumption found in the judgment of Dickson J in Gustavson Drilling (1964) Ltd v Minister of National Revenue [1977] 1 SCR 271 at 282: The rule is that a statute should not be given a construction that would impair existing rights as regards person or property unless the language in which it is couched requires such a construction: Spooner Oils Ltd. v. Turner Valley Gas Conservation Board ([1933] SCR 629 at 638). The presumption that vested rights are not affected unless the intention of the legislature is clear applies whether the legislation is retrospective or prospective in operation. A prospective enactment may be bad if it affects vested rights and does not do so in unambiguous terms. This presumption, however, only applies where the legislation is in some way ambiguous and reasonably susceptible of two constructions.

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