Ballina Shire Council v Simon Freeden and Lorraine Freeden
[2006] NSWLEC 192
•05/01/2006
Reported Decision: (2006) 147 LGERA 295
Land and Environment Court
of New South Wales
CITATION: Ballina Shire Council v Simon Freeden and Lorraine Freeden [2006] NSWLEC 192 PARTIES: APPLICANT
RESPONDENTS
Ballina Shire Council
Simon Freeden and Lorraine Dawn FreedenFILE NUMBER(S): 41222 of 2005 CORAM: Jagot J KEY ISSUES: Question of Law :- Implied repeal of provision of local environmental plan by subsequent statute; whether local environmental plan repugnant to statute or statute covered the field LEGISLATION CITED: Ballina Local Environmental Plan 1987
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Model Provisions 1980
Interpretation Act 1987
Native Vegetation Conservation Act 1997CASES CITED: Allstate Explorations NL and Ors v Beaconsfield Gold NL and Ors [1999] NSWSC 832;
Bass v Permanent Trustee Co Ltd & Ors (1999) 198 CLR 334;
Clyde Engineering Company Limited v Cowburn (1926) 37 CLR 466;
Cullis v Ahern (1914) 18 CLR 540;
Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002;
Ex parte Kauter (1904) 4 SR (NSW) 209;
Ex parte McLean (1930) 43 CLR 472;
Gentel v Rapps [1902] 1 KB 160;
Goodwin v Phillips (1908) 7 CLR 1;
Greg Young v Parramatta City Council [2006] NSWLEC 116;
Hanwood Pastoral Co Pty Ltd v Director-General of the Department of Natural Resources [2005] NSWLEC 664;
ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697;
K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309;
Myer Queenstown Garden Plaza Pty Ltd and Myer Shopping Centres Pty Ltd v Corporation of the City of Port Adelaide and the Attorney-General (1975) 11 SASR 504;
Oates & Anor v Director-General of Department of Infrastructure, Planning and Natural Resources [2004] NSWLEC 164;
Powell v May [1946] 1 KB 330;
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355;
Saraswati v The Queen (1990) 172 CLR 1;
State of Western Australia v Commonwealth (1995) 128 ALR 1;
Stevens v Perrett (1935) 53 CLR 449;
Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532;
The State of South Australia v Tanner and Others (1988) 166 CLR 161;
Tucker v Dickson (1981) 27 SASR 321DATES OF HEARING: 21/03/2006
DATE OF JUDGMENT:
05/01/2006LEGAL REPRESENTATIVES: APPLICANT
D Wilson
SOLICITORS
W J Grace & CoRESPONDENTS
S Duggan
SOLICITORS
Bourke Love McCartney Young
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
1 May 2006
41222 of 2005
BALLINA SHIRE COUNCIL
ApplicantJUDGMENTSIMON FREEDEN and LORRAINE DAWN FREEDEN
Respondents
Jagot J:
Introduction
1 The parties seek determination of a separate question in these class 4 proceedings.
2 In the Class 4 proceedings, Ballina Shire Council (the “Council”) applies for declarations and orders against the respondents (the owners of certain land from which vegetation was cleared) as follows:
1. A declaration that the Respondents by themselves and each of them, their servants, agents and assigns have carried out or caused to be carried out vegetation destruction removal or clearing and excavation on the land described in the schedule hereto without the consent of the Applicant Council pursuant to the provisions of the Environmental Planning and Assessment Act 1979 (as amended) first had and obtained.
2. Order that the Respondents are themselves and each of them to carry out re-vegetation and rehabilitation and management of the areas in which vegetation has been destroyed, removed or cleared, or where excavation has occurred on that said land in accordance with a plan of management being Annexure “W” to the Affidavit of Ian Jonathan Gaskell sworn 11 October 2005 and filed herein.
3 The Class 4 application, as apparent from para 1 of the relief sought (which refers to “…the consent of the Applicant Council…had and obtained”), assumes that: - (i) the clearing involved the carrying out of development without development consent, where the provisions of an environmental planning instrument provided that such development may not be carried out except with development consent, and (ii) the Council had the function of determining any development application for the carrying out of that activity.
4 The respondents challenge both assumptions.
5 On 28 February 2006, Talbot J ordered that the following question be dealt with as a preliminary question in the proceedings:
Whether vegetation destruction removal or clearing and excavation alleged in the Class 4 Application requires consent pursuant to the Environmental Planning and Assessment Act 1979.
6 At the hearing, the parties tendered an amended separate question in which they sought to disclose the basis of their competing contentions. The amended question is:
Did the provisions of the Native Vegetation Conservation Act 1997 (now repealed) obviate the requirement for development consent under the provisions of clause 23 of the Ballina Local Environmental Plan 1987 to cut down, top, lop or otherwise destroy a tree (other than a tree planted for commercial or landscape purposes) or to clear fill or otherwise alter the surface level of land?
I did not make an order for separate determination of this amended question.
7 In summary, the respondents contend that the Native Vegetation Conservation Act 1997 (the “NVC Act”) (now repealed, but in force when the relevant clearing occurred) operated to repeal cl 23 of the Ballina Local Environmental Plan 1987 (the “LEP”), insofar as that clause required consent to be obtained to cut down (etc.) a tree within the definition of “native vegetation” in the NVC Act. Alternatively, the respondents contend that cl 23 of the LEP, to the same extent, is inconsistent with the NVC Act and thereby invalid. The Council contends that both the NVC Act and LEP operated according to their terms with the result, in this case, that: - (i) development consent was not required by operation of the NVC Act for the respondents to carry out the clearing, but (ii) development consent was required by operation of s 76A of the Environmental Planning and Assessment Act 1979 (the “EPA Act”) and the LEP (cl 23) for the respondents to carry out the clearing, which consent was not obtained.
8 In response to my query about the reasons for separate determination of any issue in the proceedings, the parties informed me that the re-vegetation and rehabilitation orders sought by the Council in the class 4 application would involve substantial evidence and debate. The parties agreed that, if the respondents’ contentions are correct, then the costs and time associated with resolving the rehabilitation issue would be avoided (because the foundation of the class 4 application, in that event, would be removed and, I infer, the class 4 application ought then to be dismissed). Hence, both parties submitted that the hearing of the separate question was appropriate in the particular circumstances of this matter.1 In the result, I heard the competing arguments of the parties on the operation of the NVC Act, the EPA Act and the LEP.
9 On reflection, I consider both questions represent steps in a process of reasoning relevant to answering a necessary question in the proceedings – namely, did the respondents contravene the EPA Act (s 76A) by carrying development out on land (the clearing), being development which an environmental planning instrument provided may not be carried out except with development consent? If cl 23 of the LEP was repealed by the NVC Act, then (there being no other source of any requirement for development consent), the answer to this question would be “no”. It would follow from that answer that the class 4 application should be dismissed. If cl 23 of the LEP operated at the time of clearing, then I consider that further facts must be agreed or found to enable this question to be answered.
Facts
10 The parties agreed certain facts. Relevantly:
1. The Respondents are the owners of Lot 2 in DP259410 (the Freeden land ).
2. The Freeden Land is 40 hectares in area.
…
6. The Freeden Land is zoned:
(a) 7(d) Environmental Protection (Scenic/ Escarpment) Zone; and
(b) 1(b) Rural,
under the Ballina Local Environmental Plan 1987 ( the LEP ).
7. The LEP was gazetted on 27 February 1987.
8. Clause 5 of the LEP contains definitions of “clearing” and “native plants” and these definitions applied at the date of the Activities (as defined below).
9. Clause 23 was part of the LEP at date of gazettal and was amended by Gazette published on 28 October 1988 and Gazette published on 21 November 2003. These amendments to Clause 23 are irrelevant for present purposes.
10. Activities were undertaken on the Freeden Land in the period late 2002 to April 2004 ( the Period ).
11. The activities undertaken on the Freeden Land during the Period include:(a) The removal of native and non-native vegetation ( Clearing );
( the Activities ).
(b) The alteration of the surface of the land and/or excavation incidental to, or as a result of, the Clearing; and
(c) The excavation and alteration of part of the Freeden Land not incidental to or as a result of the Clearing, being that part of the Freeden Land shown on Plate R21 of the Affidavit of Ian Gaskell affirmed 11 October 2005.
12. The land on which the Activities were undertaken is located wholly within the 7(d) zone.
13. The total area cleared on the Freeden Land during the Period was approximately 1.1ha.
…15. During the Period the Native Vegetation Conservation Act 1997 ( NVC Act ) applied to the Freeden Land. (The NVC Act was repealed by section 52 of the Native Vegetation Act 2003 with effect from 1 December 2005.)
16. With respect to the operation of the NVC Act the Freeden Land was not excluded from the NVC Act in that the Ballina Local Government area is not excluded from the operation of the Act (refer to section 9; and section 10, schedule 1 and schedule 2).
17. To the extent that the clearing included the removal of vegetation the vegetation was native vegetation in so far as it comprised:(a) Brush Box (Lophostemon confertus)
…
(b) Brush Ironbark Wattle (Acacia aulacocarpa var. aulacocarpa)
(c) Coastal Blackbutt (Eucalyptus pilularis)
(d) Forest Oak (Allocasuarina tortulosa)
(e) Grey Ironbark (Eucalyptus siderophloia)
(f) Mat Rush (Lomandra longifolia)
(g) Pink Bloodwood (Corymbia intermedia)
(h) Prickly Alyxia (Alyxia ruscifolia)
(i) Red Ash (Alphitonia excelsa)
(j) Red-fruited Saw sedge (Gahnia aspera)
(k) Tallowwood (Eucalyptus microcorys)
(l) Tree Heath (Trochocarpa laurina).
20. The removal of the vegetation included, in part, the cutting down, topping, lopping or otherwise destroying a tree (or trees) other than trees planted for commercial or landscaping purposes.
11 Although not stated in the agreed facts, the hearing proceeded on the agreed basis that: - (i) there was no development consent obtained for the clearing, and (ii) the clearing was “for a purpose or extent described in Schedule 3 to SEPP 46…”, as referred to in cl 3(2) of Sch 4 to the NVC Act. The significance of these agreed facts will become apparent. Certain other facts were also agreed, as disclosed below.
The legislative schemes
The EPA Act
12 The EPA Act commenced on 1 September 1980. During the carrying out of the clearing, the EPA Act contained the following relevant provisions.
13 Section 4(1) defined the following terms:
consent authority , in relation to a development application or an application for a complying development certificate, means:
(a) the council having the function to determine the application, or
(b) if a provision of this Act, the regulations or an environmental planning instrument specifies a Minister or public authority (other than a council) as having the function to determine the application—that Minister or public authority, as the case may be.development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate.
environmental planning instrument means a State environmental planning policy, a regional environmental plan, or a local environmental plan, and except where otherwise expressly provided by this Act, includes a deemed environmental planning instrument.development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.
14 Section 4(3) provided that:
(3) Where functions are conferred or imposed by or under this Act on a council:
(a) except as provided in paragraph (b), those functions may be exercised in respect of an area by the council of that area, or
(b) if the functions are conferred or imposed in respect of part of an area, those functions may be exercised in respect of that part by the council of that area.
15 Environmental planning instruments were subject to the provisions of Div 1 of Pt 3 of the EPA Act. Local environmental plans were made in accordance with Div 4 of Pt 3.
16 Section 76A(1) and (2) provided that:
(1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(2) For the purposes of subsection (1), development consent may be obtained:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
(a) by the making of a determination by a consent authority to grant development consent, or
(b) in the case of complying development, by the issue of a complying development certificate.
17 Section 122 provided that:
In this Division:
(a) a reference to a breach of this Act is a reference to:(b) …
(i) a contravention of or failure to comply with this Act, and
(ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and
18 Section 124(1) provided that:
(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
The LEP
19 The LEP came into force in accordance with s 34(5) of the EPA Act on 27 February 1987. During the carrying out of the clearing, the LEP contained the following relevant provisions.
20 Under cl 3, the LEP applied to the whole of the land within the Shire of Ballina as shown on the Map (which includes the land cleared in this case).
21 Clause 5(1) defined the following terms.
clearing , in relation to land, means the destruction or removal in any manner of native plants growing on the land, but does not include:
(a) the destruction or removal of plants declared noxious by proclamation pursuant to section 467 of the Local Government Act 1919, by means not likely to be significantly detrimental to the native ecosystem, or
(b) the incidental destruction or removal of native plants lying adjacent to any such noxious plants occurring unavoidably during the process of destroying or removing those noxious plants.native plants means plants indigenous to the State of New South Wales, including trees, shrubs, ferns, vines, herbs and grasses indigenous to the State, but does not include plants grown for commercial purposes.council means the Council of the Shire of Ballina.
22 Clause 7 provided that:
The council is the consent authority for the purposes of this plan.
23 Clause 23 provided that:
23 Development within Zone No 1(d), 7(c), 7(d), 7(d1), 7(f), 7(i) or 7(l)
A person shall not, on land within Zone No 1(d), 7(c), 7(d), 7(d1), 7(f), 7(i) or 7(l):
(a) notwithstanding clause 8 of the Environmental Planning and Assessment Model Provisions 1980, cut down, top, lop or otherwise destroy a tree (other than a tree planted for commercial or landscaping purposes), or
(b) clear, fill or otherwise alter the surface level of land,
without the consent of the council.
24 Clause 8 of the Environmental Planning and Assessment Model Provisions 1980 provided that:
(1) Where it appears to the council that it is expedient for the purpose of securing amenity or of preserving existing amenity, it may, for that purpose and by resolution, make an order (hereinafter referred to as a tree preservation order ) and may, by like resolution, rescind or vary any such order.
(2) …
(5) A person who contravenes or causes or permits to be contravened a tree preservation order shall be guilty of an offence.
The NVC Act
25 The NVC Act commenced on 1 January 1998. The long title of the Act was as follows:
An Act relating to the conservation and sustainable management of native vegetation and the clearing of land; to amend the Soil Conservation Act 1938 and certain other Acts; to repeal State Environmental Planning Policy No 46—Protection and Management of Native Vegetation; and for related purposes.
26 The second reading speech for the Native Vegetation Conservation Bill 2, summarised the bill as follows:
The bill replaces the existing controls relating to the clearing of native vegetation with a consolidated legislative framework that provides a single system for controlling clearing throughout the State. The controls for clearing under SEPP 46 and the Soil Conservation Act, for example, will be repealed and replaced by the provisions of the Native Vegetation Conservation Bill. This bill maintains the concept of "protected land" from the Soil Conservation Act and allows protected land to be incorporated into regional vegetation management plans as regional protected land. Protected land has the important role of identifying certain environmentally sensitive land, steep slopes and riparian land where clearing of all types of vegetation needs particularly close assessment.
Certain local government areas are to be excluded where local environmental plans provide appropriate native vegetation conservation protection. These local government areas are listed in schedules to the bill. Even though the bill is designed to encourage partnerships in native vegetation management it is essential that it provides as its bottom line clear rules for the management of vegetation clearing. For this purpose, part 2 of the bill sets up two basic situations - when a regional vegetation management plan does and does not apply. Firstly, when a regional vegetation management plan has been approved by the Minister for Land and Water Conservation, the plan will contain all the provisions relating to clearing including exemptions and requirements for development consent . 3The development consent process under the Environmental Planning and Assessment Act will be used as the basis of controlling clearing in accordance with the proposed Act. That link is important as it allows clearing of native vegetation to be linked with the environmental planning system. This bill has been designed to remove unnecessary duplication and provide a one-stop shop for landholders seeking advice on requirements relating to clearing. As the Minister for Land and Water Conservation I will be the consent authority for such clearing when it is required. When land is managed under a legislative regime providing full protection for native vegetation values, such as a national park or land mapped as a coastal wetland according to State Environmental Planning Policy 14, the bill does not apply.
27 The second reading speech continued:
Initially, transitional arrangements will mean that these exemptions will be the same as those previously allowed for under State environmental planning policy 46, the protected lands provisions of the Soil Conservation Act, and the exemptions in the Western Lands Act. The bill contains a provision allowing the making of a regulation to modify or make new exemptions. The development consent process for people wanting to clear native vegetation or protected land is provided for in the Environmental Planning and Assessment Act. Therefore a development application for clearing follows similar procedures for environment assessment, approval and appeal as for any other development consent. For clearing under the Native Vegetation Conservation Act, as the Minister for Land and Water Conservation I will be the consent authority. I will be required to consult with the Minister for the Environment where there are threatened species concerns. 4
The relationship between the Acts and instrument
28 A construction that would promote the purposes or objects underlying the NVC Act, the EPA Act and the LEP is to be preferred to a construction that would not promote their (respective) purposes or objects.5 Extrinsic material, including second reading speeches, may be examined to assist in construing any Act to confirm the ordinary meaning of any provision, or to determine the meaning of any provision where its meaning is ambiguous or obscure.6
29 How did the NVC Act provide “a single system for controlling clearing throughout the State” and a “one-stop shop for landholders seeking advice on requirements relating to clearing”?
30 Section 3 identified the objects of the NVC Act, which included the following:
(a) to provide for the conservation and management of native vegetation on a regional basis, and
…
(c) to protect native vegetation of high conservation value, and
…
(f) to prevent the inappropriate clearing of vegetation, and
…
in accordance with the principles of ecologically sustainable development.
31 Section 4 contained the following definitions:
clearing is defined in section 5.
development consent means development consent under Part 4 of the EPA Act.
environmental planning instrument has the same meaning as in the EPA Act.
EPA Act means the Environmental Planning and Assessment Act 1979.
native vegetation is defined in section 6.
tree includes a sapling or a shrub, or scrub.regional vegetation management plan (or plan ) means a regional vegetation management plan in force under Part 3.
32 Section 5 distinguished between the clearing of native vegetation and the clearing of protected land. The clearing of native vegetation was defined in terms that would encompass the concept of “clearing” in cl 5(1) of the LEP.
33 Native vegetation was defined in s 6. That definition would encompass the concept of “native plants” referred to in the definition of “clearing” in cl 5(1) of the LEP, and itself defined in that clause.
34 The agreed facts disclose that the cleared land was not land excluded from the operation of the NVC Act by s 9. Moreover, the Shire of Ballina was not a local government area where, according to the second reading speech, the LEP provided “appropriate native vegetation conservation protection”7 enabling the exclusion of that area from the operation of the NVC Act. Hence, the Shire of Ballina was not referred to in Sch 1 or 2 of the NVC Act (s 10).
35 The hearing also proceeded on the agreed basis that: - (i) the clearing was not one of the types referred to in s 12 of the NVC Act, and (ii) the land was not “protected land” as defined in s 4(1) of that Act.
36 Part 2 of the NVC Act regulated clearing native vegetation and clearing protected land. It did so by drawing a primary distinction between land subject to a regional vegetation management plan and land not subject to a regional vegetation management plan (as indicated in the second reading speech). In this case, it is common ground that no regional vegetation management plan applied to the land. Part 3 of the NVC Act concerned regional vegetation management plans.
37 Div 1 of Pt 2 contained general provisions, including the following:
14 Consent authority for clearing
For the purposes of the EPA Act, the Minister is the consent authority for any development application made under that Act for any clearing that requires development consent because of this Part.
16 Relationship with Part 5 of EPA Act
15 Granting of development consent
(1) If development consent is, because of this Part, required to clear native vegetation or any protected land, that development consent may be obtained by the Minister making a determination, in accordance with Part 4 of the EPA Act, to grant development consent.
(2) For the avoidance of doubt, Part 4 of the EPA Act applies to and in respect of that development consent in the same way as it applies to and in respect of development consent that may be required by an environmental planning instrument.
Part 5 of the EPA Act does not apply to any clearing carried out in accordance with this Part, and any such clearing is not an activity for the purposes of Part 5 of the EPA Act.
17 Offence of contravening this Part
(1) A person who contravenes this Part is guilty of an offence under this Act.
(2) Section 126 (1) of the EPA Act (Penalties) applies to any such offence in the same way as it applies to an offence against that Act.
38 Division 2 of Pt 2 concerned clearing of land subject to a regional vegetation management plan. Specifically, ss 18 and 19 regulated clearing of native vegetation and regional protected land where a regional vegetation management plan provided that such clearing could be carried out only with or without development consent. These provisions reflect s 76A of the EPA Act, which is apt given that regional vegetation management plans were taken to be environmental planning instruments which prevailed over any other environmental planning instrument (whether made before or after the regional vegetation management plan) to the extent of any inconsistency (s 36 of the NVC Act).
39 Although no regional vegetation management plan applied to the land cleared in this case, s 20(1) (in Div 2 of Pt 2 of the NVC Act) also discloses the relationship between the NVC Act and the EPA Act (and environmental planning instruments). Section 20(1) provided that:
(1) If native vegetation or regional protected land is, or is about to be, cleared in accordance with:
(a) development consent as required by a regional vegetation management plan, or
(b) a regional vegetation management plan,
that clearing cannot be prohibited, restricted or otherwise affected by any other environmental planning instrument or by the provisions of any Act (other than this Act, the Plantations and Reafforestation Act 1999 or the EPA Act) to the extent to which that instrument, or those provisions, prohibit, restrict or otherwise affect that clearing.
40 Div 3 of Pt 2 was headed “Land not subject to regional vegetation conservation management plan”. Section 21 dealt with clearing native vegetation, and s 22 with clearing State protected land. Relevantly, s 21 provided that:
(1) This section does not apply to:
(2) A person must not clear native vegetation on any land except in accordance with:
(a) any land to which a regional vegetation management plan applies, or
(b) State protected land.
(a) a development consent that is in force, or
(b) a native vegetation code of practice.
41 Section 23 provided that:
(1) If native vegetation or State protected land is, or is about to be, cleared in accordance with development consent as required by this Division, that clearing cannot be prohibited, restricted or otherwise affected by an environmental planning instrument or by the provisions of any Act (other than this Act or the EPA Act) to the extent to which that instrument, or those provisions, prohibit, restrict or otherwise affect that clearing.
(2) However, subsection (1) does not operate to exclude any requirement for:that might arise in relation to any such clearing.
(a) consent under section 90 of the National Parks and Wildlife Act 1974, or
(b) a licence under the Protection of the Environment Operations Act 1997,
(3) Subsection (1) does not apply to any clearing that is lawfully carried out under this Act otherwise than in accordance with development consent as required by this Division.
42 Section 23(3) was succeeded by a note which stated:
Note. For example, in any case where clearing is carried out in accordance with a native vegetation code of practice, the clearing may still require development consent because of an environmental planning instrument.
43 Native vegetation codes of practice were provided for in Pt 4 of the NVC Act. As noted, s 21(2) specifies that (for land not subject to a regional vegetation plan or State protected land) it is an offence to clear native vegetation except in accordance with a development consent that is in force or a native vegetation code of practice.
44 The note to s 23(3) does not form part of the NVC Act.8 It is extrinsic material that may be taken into account in accordance with the circumstances specified in s 34 of the Interpretation Act 1987 (if applicable).
45 Other provisions in the NVC Act disclose its intended relationship with the EPA Act. For example, in Pt 4 of the NVC Act, ss 27(2) and (3) dealt with the relationship between regional vegetation management plans and State Environmental Planning Policy No 44 – Koala Habitat Protection, and environmental planning instruments generally (the latter, presumably, with an eye to the operation of s 36(3) of the NVC Act). Under s 28(2), councils were required to be notified of any draft regional vegetation management plan intended to apply in their local government area. Section 36, as noted, concerned the status of regional vegetation management plans as environmental planning instruments.
46 Section 68 provided that “Schedule 4 has effect”.
47 Section 70 provided that:
State Environmental Planning Policy No 46—Protection and Management of Native Vegetation is repealed.
48 Part 2 of Sch 4, in cl 3, contained the following provisions:
(1) …
(2) Subject to the regulations, the clearing of native vegetation for a purpose or extent described in Schedule 3 to SEPP 46 continues, after the repeal of SEPP 46 by this Act, to be clearing that is exempt from any requirement under Part 2 of this Act for development consent.
(3) Subclause (2), and any regulation made for the purposes of that subclause, ceases to have effect in relation to the clearing concerned if the land to which the clearing relates becomes land to which a regional vegetation management plan applies.
49 Schedule 3 to SEPP 46 contained a provision which referred to clearing of native vegetation for the purpose or extent of, relevantly:
(a) Minimal clearing. The clearing of up to 2 hectares per annum for any contiguous land holding in the same ownership.
50 Paragraphs 1, 2, 11 and 13 of the agreed facts disclose that the clearing of the respondents’ land involved clearing of (relevantly) native vegetation of 1.1 hectares of land in a contiguous holding and in the same ownership. In other words, and as noted in [7] above, the clearing was “…exempt from any requirement under Part 2 of [the NVC] Act for development consent” (Sch 4, cl 3(2)).
The submissions
51 The respondents’ submissions may be summarised as follows.
(1) The NVC Act covered the field with respect to clearing native vegetation in New South Wales.
(2) The LEP, in cl 23, purported to deal with the same subject matter as the NVC Act.
(3) The NVC Act exclusively regulated the requirement for development consent in New South Wales to clear native vegetation. See, for example, ss 3, 14, 15, 16, 20 and 23 of the NVC Act and the second reading speech.
(4) This conclusion was supported by facts relevant as aids to construction – namely, that: (i) the LEP is subordinate legislation and cannot prevail over an Act, (ii) the NVC Act commenced some 10 years after the LEP and thus was the later in time, and (iii) the NVC Act specifically dealt with clearing native vegetation, whereas cl 23 of the LEP dealt with clearing of all types of vegetation.
(6) Hence, cl 23 of the LEP, insofar as it purported to require development consent for clearing to which Sch 4, cl 3(2) of the NVC Act applied, was inconsistent with the NVC Act and, to that extent, invalid or inoperative.(5) Moreover, the provisions of the NVC Act and the LEP could not stand together without producing absurdity. In particular, cl 3(2) of Sch 4 of the NVC Act made plain that certain clearing was to be exempt from any requirement for development consent. If cl 23 of the LEP operated so as to require development consent to be obtained from the Council for that clearing, the benefit of that intended exemption would be lost.
52 The Council’s submissions at the hearing (which diverged considerably from its written submissions) may be summarised as follows.
(1) The NVC Act must be read as a whole. Section 68 was a part of the Act. By that section, the clearing of the land in this case was exempt from any requirement to obtain development consent by reason of the NVC Act.
(2) Accordingly, the facts of this case did not raise the spectre of requiring two development consents to carry out the same clearing activity (one from the Minister and one from the Council). 9
(4) The absence of inconsistency between the NVC Act and cl 23 of the LEP, in this case, was supported by the “basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other”. 10(3) Where, as in this case, the clearing was within the scope of Sch 4, cl 3(2) of the NVC Act, there was no inconsistency between that Act and cl 23 of the LEP because: - (i) each of the NVC Act and the LEP, cl 23, had their respective fields of operation, (ii) s 23 of the NVC Act expressly identified the extent of intrusion by that Act into the operation of the LEP, (iii) s 23 provided the “one stop shop” referred to in the second reading speech, and (iv) s 23 did not apply to the clearing of the respondents’ land as s 23(3) made plain.
Applicable principles
53 Subordinate legislation may not make unlawful that which the general law makes lawful. Hence, “a by-law is repugnant if it adds something inconsistent with the provisions of a statute creating the same offence; but if it adds something not inconsistent, that is not sufficient to make the by-law bad as repugnant”.11
54 The respondents referred to inconsistency arising by reason of the NVC Act “covering the field”. The “cover the field” test applies in the context of s 109 of the Constitution and involves identifying an intention of the “paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed.”12
55 Wells J observed in Myer Queenstown Garden Plaza Pty Ltd and Myer Shopping Centres Pty Ltd v Corporation of the City of Port Adelaide and the Attorney-General (1975) 11 SASR 504 at 541, that there are “sound reasons” for “declining to transplant the test to be used when s 109 of the Constitution is invoked and, mutatis mutandis, apply it indiscriminately to the prohibition against repugnancy…”. One reason given by Wells J in support of this disinclination was that the legislation and delegated legislation there under consideration emanated from the same legislature, and thus triggered consideration of the presumption that a single legislature does not intend to contradict itself. Gummow J referred to this presumption in Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 at 546 – 547 as follows:
The term “inconsistent” is one whose meaning is by no means self-evident when applied to the relationship between two laws: see the range of possible meanings canvassed by Dr Tammelo in “The Tests of Inconsistency Between Commonwealth and State Laws” (1957) 30 ALJ 496. In Australia, the term “inconsistency”, used in relation to the operation of laws, invariably directs attention to s 109 of the Constitution. However, that does not necessarily provide safe guidance in a case which concerns statutes of the same legislature. Speaking of the relationship between successive State statutes, Fullagar J said in Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276:
It should be pointed out in this connection that the position where contrariety is suggested between an earlier and a later State statute is not quite the same as the position where inconsistency, within the meaning of s 109, is suggested between a Commonwealth Act and a State Act. The Commonwealth Parliament is, within its sphere of power, paramount legislature, and there can be no presumption either that it did, or that it did not, intend by its own Act to supersede or preclude from operation a State Act. But, where the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other.
It is true that in Butler v Attorney-General (Vic) (at 281), Kitto J spoke of the later State statute as having “every appearance of intending to cover the ground comprehensively” and Menzies J (at 286) described it as making “an exhaustive statement”. However, in general, where legislation of the same legislature is under consideration, the courts have tended to eschew the application of any “covering the field” doctrine derived from federal constitutional law. In Goodwin v Phillips (at 10), Barton J spoke in terms of “repugnancy”. In Butler v Attorney-General (Vic) Kitto J, earlier in his judgment (at 280), had approached the question by asking whether the two statutes “could stand together”, and Fullagar J (at 276) spoke of “contrariety”, Taylor J (at 285) spoke of “direct conflict”, and Windeyer J (at 290) asked whether the two statutes were clearly and indisputedly contradictory, displaying such repugnancy that they would not be reconciled. Again, in Travinto Nominees Pty Ltd v Vlattas (at 34) Gibbs J, in discussing the decision in Breskvar v Wall described that case as one in which it was held that the two statutes in question “could stand together”.
56 Barrett J, in ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 at [101]–[118], reviewed many of the authorities relating to statutes enacted by the same legislature and concluded at [111] that:
… it can, I think, be regarded as settled law that the test of implied repeal is the test of contrariety or repugnancy. The covering the field approach taken in cases regarding inconsistency between State and Commonwealth statutes is not relevant in cases regarding inconsistencies between two State statutes. This is because there is a presumption that exists when comparing State statutes — and does not when comparing State statutes to Commonwealth statutes — that the legislature did not intend to contradict itself.
57 In The State of South Australia v Tanner & Others (1988) 166 CLR 161 at 170, the High Court (Wilson, Dawson, Toohey and Gaudron JJ) identified that:
The argument of inconsistency which succeeded before the Full Court was that there is a basic contrariety between reg. 37.2.1 made under the Waterworks Act and s 47 of the Planning Act. The former imposes a blanket and unqualified prohibition on a development; the latter permits a planning authority, having regard to the Plan, to give consent to the development. The regulation prohibits that which the later Act may permit.
58 At 171, the High Court referred to the “very strong presumption” that the State legislature did not intend to contradict itself. Applying the maxim generalia specialibus non derogant, the Court held that the challenged regulation made under the Act was valid, although it prohibited that which the more general Act permitted with consent.
59 In Goodwin v Phillips (1908) 7 CLR 1 at 7, Griffiths CJ observed that implied repeal also arises in circumstances where provisions “are not wholly inconsistent, but may become inconsistent in their application to particular cases”, in which event, to the extent necessary, the “provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act”.
60 The respondents submitted that the “cover the field” test was appropriate in that the LEP is not subordinate legislation of the same Parliament which enacted the NVC Act (the LEP being an instrument prepared by the Council, even if made by the Minister).
61 The LEP is delegated legislation made under the EPA Act. The LEP has substantive operation by reason of the EPA Act (primarily s 76A). The EPA Act is a statute made by the Parliament of New South Wales. This is the same Parliament that enacted, at a later time, the NVC Act. These factors weigh against use of the “cover the field” test. Nevertheless, there is support that, in an appropriate case, the “cover the field” test is applicable.13
62 I consider that it is appropriate, given the matters set out above, to address both the “cover the field” test and the common law test of repugnancy.
63 In applying the “cover the field” test, the capacity to obey both laws cannot be a touchstone of validity. Nor can the question whether the LEP (cl 23) purports to remove or qualify a right or immunity conferred by the NVC Act.14 Instead, the question is whether the NVC Act “expressly or impliedly evinces its intention to cover the whole field”;15 that is, was the NVC Act intended to be an exhaustive and exclusive statement on the subject matter of “all actions of clearing native vegetation in the State”?16
Conclusions
Indirect inconsistency – covering the field
64 The respondents submitted that the field of operation of the NVC Act was “all actions of clearing native vegetation in the State”. Was the NVC Act intended, exhaustively and exclusively, to regulate all such actions of clearing?
65 The language of the NVC Act and its substantive operation do not satisfy the requirements of the “cover the field” test posited by the respondents.
(1) A number of the objects of the NVC Act, in s 3, operated at the State and regional level. They concerned conserving native vegetation on a “regional basis” (s 3(a)), in the “interests of the State” (s 3(b)), and are directed towards protecting native vegetation of “high conservation value” (s 3(c)). The scheme in the EPA Act for the making of local environmental plans, in contrast, relates to local government areas, not regions or the State (see, for example, ss 54(1) and the limited exception in s 54(3)). The scheme of the LEP, given the enabling structure of the EPA Act, focuses on the environment of the Shire of Ballina (see, for example, cll 2(2)(d), (f) and (i)). This suggests the existence of different fields of operation.
(2) In enacting the NVC Act, I infer that the legislature had the operation of the EPA Act and environmental planning instruments made under that Act at the forefront of its mind. See, for example, the definitions of “development consent”, “EPA Act” and “environmental planning instrument” in s 4(1) of the NVC Act, and the terms of ss 9(a) to (c), 10, 11 (in particular, subs (3) and (4)), 12(f), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25(2) – (4), 27(2), 28(2)(a) and (b) and 36 of that Act.
(4) Some of the provisions identified in (2) above expressly or impliedly recognised the field of operation of the EPA Act (and environmental planning instruments) as actually or potentially addressing the same subject matter as the NVC Act. For example:(3) Many of the sections identified in (2) above addressed the integration of the provisions of the NVC Act with the EPA Act and environmental planning instruments. That is, the provisions of the NVC Act dealt (extensively) with the relationship between that Act, the EPA Act and environmental planning instruments.
(a) in ss 9(a) to (c), 10, 11 and 12(f), the NVC Act withdrew from the field of operation contended for by the respondents;
(b) s 15(1) used the words “…because of this Part”, which implicitly recognised that development consent may be required for clearing other than by operation of Pt 2 of the NVC Act. Those words are repeated in s 15(3)(a);
(c) the primary distinction drawn in the NVC Act (land subject to a regional vegetation management plan and land not so subject) was reflected in Divs 2 and 3 of Pt 2. Both divisions made their field of operation clear, and both contained a provision expressly defining their relationship with other statutes and environmental planning instruments;
(d) hence, in Div 2, ss 18 and 19 were limited to clearing regulated by a regional vegetation management plan, but said nothing about clearing not regulated by a regional vegetation management plan. For example, subs (2) of each section did not say that all clearing not regulated by a regional vegetation management plan may be carried out without consent and claim the protection from Pt 5 of the EPA Act offered by s 16;
(e) in consequence, s 20 in Div 2 was limited to clearing in accordance with a development consent required by a regional vegetation management plan or in accordance with the plan itself (which may have provided that consent was not required). The section is expressly limited to “…that clearing” and “…any such clearing”;
(f) s 21(2) in Div 3 referred to a “development consent that is in force” (not merely a development consent required by operation of Pt 2). Similarly, s 22 referred to a “development consent that is in force”. Section 23(1) referred to “…development consent as required by this Division…”, not development consent required other than by the Division;
(g) s 23(3) in Div 3 expressly recognised that clearing may be lawfully carried out under the NVC Act otherwise than in accordance with development consent required by Div 3 of Pt 2. In any such case, the NVC Act (by s 23(3)) expressly stated that its trumping provision (s 23(1)) did not apply to that clearing. In one sense, s 23(3) may be an example of the application of abundant caution, because the opening words of s 23(1) disclose that the trumping provision only applied to clearing “in accordance with development consent as required by this Division”. That limitation itself speaks against the NVC Act “covering the field” of all clearing in the State;
(h) under s 36, a regional vegetation management plan did not “cover the field” with respect to all actions of clearing native vegetation. It prevailed only to the extent of inconsistency; and
(i) cl 3(2) of Sch 4 itself referred to “…any requirement under Part 2 of this Act for development consent”. Those words implicitly recognised (as did s 23(3)) that clearing native vegetation may be lawful under the NVC Act, and yet be regulated by some other Act or instrument. That is, that development consent may be required for clearing other than under Pt 2 of the NVC Act.
66 Given that the NVC Act expressly and carefully regulated its own interaction with the EPA Act and environmental planning instruments, and left the operation of the latter intact in many respects, it is difficult to accept that the type of indirect inconsistency associated with the “covering the field” test is apt in this case. If it is to be applied, the relevant field cannot be “all actions of clearing native vegetation in the State”, because the NVC Act did not exhaustively and exclusively regulate that field of conduct, according to its own terms. That field was left “partly open” by the NVC Act.17
67 In particular, where land was not subject to a regional vegetation management plan and clearing was lawful under the NVC Act otherwise than in accordance with a development consent required by Div 3 of Pt 2 of the Act, the NVC Act expressly withdrew from the field “all actions of clearing native vegetation in the State”. Instead, the NVC Act recognised the potential operation of environmental planning instruments with respect to such clearing (see s 23(3) and (1), read with s 21 and cl 3(2) of Sch 4).
68 For these reasons, I consider that, insofar as the clearing in question was clearing on land not subject to a regional vegetation management plan, lawfully carried out under the NVC Act otherwise than in accordance with development consent as required by Div 3 of Pt 2 of that Act, there is no basis to infer that the legislature intended the NVC Act, exhaustively and exclusively, to regulate that clearing. The clearing, on the agreed facts in this case, falls within this description. Hence, inconsistency does not arise between the NVC Act and cl 23 of the LEP on the (indirect) basis that the latter purports to intrude into a field exclusively and exhaustively regulated by the former.
69 The question of direct (or textual) inconsistency remains.
Direct inconsistency - repugnancy
70 The legal effect of the NVC Act (and the LEP) must be considered. To do so, the whole of the relevant context must be considered, including “other provisions of the statute, other statutes in pari materia and the existing state of the law”.18 It will be apparent that a key issue for the test of repugnancy is the operation of cl 3(2) of Sch 4, construed in the context of the NVC Act as a whole.
71 The scheme of the NVC Act, insofar as relevant, pre-supposed the existence and operation of the EPA Act. By s 14, the NVC Act provided that, for the purposes of the EPA Act, the Minister was the consent authority for clearing that required development consent because of Pt 2. That is, s 14 had effect according to its terms, irrespective of the definition of “consent authority” in s 4 of the EPA Act. In this sense, the NVC Act prevailed over the EPA Act. Otherwise, the development consent processes under Pt 4 of the EPA Act operated (s 15 of the NVC Act), subject to provisions of the NVC Act such as s 14.
72 Because Pt 2 of the NVC Act contemplated that certain clearing may be carried out without development consent, s 16 provided that any such clearing (that is, in accordance with Pt 2 of the NVC Act) was not subject to Pt 5 of the EPA Act.
73 If a regional vegetation management plan was in force, clearing could be carried out in accordance with that plan (with or without consent). In any such case, the NVC Act trumped all environmental planning instruments (called “other environmental planning instruments” in s 20(1), because a regional vegetation management plan is itself taken to be an environmental planning instrument by s 36) and Acts, other than the Acts identified in ss 20(1) and (2). The fact that the EPA Act was an Act so identified reflects the integration of the two statutes, even though some of the provisions of the NVC Act (for example, ss 14 and 16) operated directly upon provisions of the EPA Act.
74 Where no regional vegetation management plan was in force and the land was not State protected land, a person could not clear native vegetation other than in accordance with a development consent or a native vegetation code of practice (s 21). However, Sch 4 had effect so that the clearing of any native vegetation for a purpose or extent described in Sch 3 of SEPP 46 continued, despite the repeal of SEPP 46, to be clearing that was exempt from any requirement under Pt 2 of the NVC Act for development consent. Where clearing was or was about to be carried out in accordance with a development consent as required by Div 3 of Pt 2, the NVC Act trumped all environmental planning instruments (the word “other” being unnecessary in this context) and Acts, except those identified in ss 23(1) and (2). Again, the EPA Act was an Act so identified, reflecting the integrated scheme intended by Parliament.
75 Section 23(1) applied only to clearing or proposed clearing in accordance with a development consent as required by Div 3 of Pt 2. To avoid doubt, s 23(3) provided that s 23(1) did not apply to any clearing lawfully carried out under the NVC Act other than in accordance with a development consent as required by Div 3 of Pt 2. Two examples of such clearing come to mind – (i) clearing in accordance with a native vegetation code of practice on land which was not State protected land (by reason of s 21(2)(b)), and (ii) clearing of any land for a purpose or extent described in Sch 3 to SEPP 46 (by reason of s 68 and cl 3(2) of Sch 4 to the NVC Act). Where any such clearing was or was about to be carried out, the trumping provision of s 23(1) did not apply.
76 Questions of inconsistency and implied repeal could arise under this scheme where the one activity involving clearing had a dual character.19 Otherwise the NVC Act dictated its relationship with the EPA Act and environmental planning instruments (and, as the later and more specific legislation, operated in accordance with its terms).
77 For clearing of land not subject to a regional vegetation management plan, lawfully carried out under the NVC Act other than in accordance with a development consent required by Div 3 of Pt 2 of that Act, there was no textual inconsistency or repugnancy between the NVC Act and cl 23 of the LEP. The scheme of the NVC Act made clear that, in any such case, consent was not required under Pt 2 of the NVC Act, but may be required under an environmental planning instrument according to the terms of that instrument.
78 An environmental planning instrument that required development consent to be obtained for such clearing of native vegetation (by reason of s 76A of the EPA Act and the provisions of the instrument), also did not remove any right or immunity conferred by the NVC Act. The immunity conferred by the NVC Act (s 68 and cl 3(2) of Sch 4) was expressed to be immunity from any requirement for consent imposed by Pt 2 of the NVC Act and no more. Contrast the position with respect to clearing of land subject to a regional vegetation management plan, where the provisions of that plan permitted the clearing without development consent. In such a case, ss 16, 18(2) and 20(1)(b) would have operated (as well as s 36), with the result that such clearing could not be affected by Pts 4 or 5 of the EPA Act. The difference between those provisions and ss 21, 23 and cl 3(2) of Sch 4 is clear. Sections 21, 23 and cl 3(2) did not exclude the operation of environmental planning instruments for clearing of land not subject to a regional vegetation management plan, and lawful under the NVC Act otherwise then in accordance with development consent required by Div 3 of Pt 2. Effect must be given to the difference.
79 Hence, on the facts agreed in this matter, there can be no implied repeal of cl 23 of the LEP by the NVC Act. The LEP remained in force and effect, and applied to the clearing of the Freeden land in accordance with its terms.
80 The terms of the exemption in cl 3(2) of Sch 4 to the NVC Act support this conclusion. The clause defined its own operation as “…any requirement under Pt 2 of this Act for development consent”, not any requirement for development consent. To achieve the result for which the respondents contend, for example, s 23(1) would need to commence with words to the effect “If native vegetation …is or is about to be cleared, with or without development consent, in accordance with this Act”, and the words “…any requirement under Pt 2 of this Act” would need to be deleted from cl 3(2) of Sch 4 (in which event, that part of the scheme of the NVC Act would then mirror the part for the clearing of land subject to a regional vegetation management plan).
81 The principles of construction relating to later provisions prevailing over earlier, and specific provisions prevailing over more general provisions, have no application absent potential inconsistency. For the reasons given above, I do not consider there to have been any relevant inconsistency between the NVC Act and cl 23 of the LEP on the facts as agreed in this case. The scheme of the NVC Act and the EPA Act (including environmental planning instruments) were readily capable of harmonious operation, where clearing was lawful under the NVC Act other than by reason of the terms of a regional vegetation management plan or development consent required by Div 3 of Pt 2. In any such case, consent was not required by reason of the NVC Act, but may be required by reason of the environmental planning instrument.
82 Contrary to the respondents’ submission, the complementary operation of the NVC Act and cl 23 of the LEP, on the facts as agreed in this case, does not yield absurdity. The submission assumes that the NVC Act intended that clearing for a purpose or extent described in Sch 3 to SEPP 46 was to be exempt from any requirement for development consent. For the reasons given above, I am satisfied that the NVC Act, construed as a whole and in accordance with the ordinary meaning of its provisions, intended that clearing for such a purpose or extent was to be exempt from any requirement for consent under Pt 2 of the NVC Act, but not otherwise.
83 The fact that the local government area of Ballina was not exempt from the NVC Act does not speak against this legislative intention. Having regard to s 3, 10, 11 and 27(3) of the NVC Act, the rationale underpinning the statutory scheme was that local environmental plans such as the LEP potentially provided insufficient protection for native vegetation. Where the NVC Act regulated the clearing through a regional vegetation management plan or development consent required under Pt 2, the NVC Act would trump any environmental planning instrument dealing with such clearing. Where the NVC Act allowed the clearing to be lawfully carried out in other circumstances and absent a development consent required under Pt 2 of that Act (that is, in accordance with a native vegetation code of practice or Sch 3 to SEPP 46), an environmental planning instrument was permitted to operate in accordance with its terms.
84 This conclusion is also not at odds with the extrinsic material (assuming that I may have regard to that material at all – as I consider the relevant provisions of the NVC Act are clear and unambiguous, and do not lead to an absurd result).
85 First, the scheme described above did provide a single system for clearing throughout the State – the system was the system established by the NVC Act integrated with the EPA Act (and environmental planning instruments). The concept of a “single system” or “one stop shop” did not mean that a person was entitled to consider only the NVC Act when proposing to clear land. The NVC Act expressly integrated itself with the EPA Act and environmental planning instruments. The provisions creating this integrated system were described in the second reading speech as “very important”.20
86 Secondly, there was no “unnecessary duplication”21 where land was not subject to a regional vegetation management plan and the NVC Act did not require consent for clearing. If consent were required by reason of s 76A of the EPA Act and the provisions of an environmental planning instrument, the section and instrument would operate according to their terms. Nothing in that result undermined the scheme of the NVC Act.
87 Thirdly, the note under s 23(3) provided an example of clearing lawful under the NVC Act other than by reason of a consent required by Pt 2 (that is, clearing in accordance with a native vegetation code of practice) and stated that, in such a case, the clearing may still require development consent because of an environmental planning instrument. The other example (in the same position) was clearing lawful under the NVC Act by reason of s 68 and cl 3(2) of Sch 4.
88 If it is relevant, the conclusion I have reached is also consistent with cl 3(2) of Sch 4 to the NVC Act, insofar as that clause speaks of clearing that “continues” to be clearing exempt from any requirement for consent under Pt 2, after the repeal of SEPP 46. SEPP 46 (repealed by s 70) was part of the context against which the NVC Act operated. The SEPP 46 exemptions were to be “continued” by the clause (see, also, the extract from the second reading speech in [27] above). SEPP 46 prevailed over any environmental planning instrument to the extent of any inconsistency (cl 4). The Director-General of the Department of Land and Water Conservation was the consent authority for clearing on land to which SEPP 46 applied (cl 6). The exemptions in Sch 3 were given effect by cl 11. Clause 11 provided only that SEPP 46 did not require development consent for any clearing described in Sch 3. Clause 11 did not provide that clearing as described in Sch 3 did not require development consent per se. In other words, where clearing was described in Sch 3, consent from the Director-General of the Department of Land and Water Conservation under SEPP 46 was not required, but consent may nevertheless have been required under a local environmental plan. There could be no inconsistency between cl 11 and any local environmental plan in that event. Potential inconsistency could arise, relevantly, with respect to the identity of the consent authority if both instruments required consent (in which event, SEPP 46 would have prevailed). Construing cl 3(2) of Sch 4 to the NVC Act against this background discloses that the clause, in fact, did “continue” the Sch 3 exemptions in SEPP 46 (but did not expand the effect of the exemptions).
89 It follows from the reasons given above that the separate question the subject of the order made by Talbot J should be answered “Yes”. The amended separate question may only be answered if the question is qualified by reference to the facts agreed in this matter (in particular, that the land was not subject to a regional vegetation management plan, and that the clearing was subject to cl 3(2) of Sch 4 to the NVC Act).22 So qualified, the amended separate question should be answered “No”. However, as I have observed, it appears to me that the relevant question in the proceedings is - did the respondents contravene the EPA Act (s 76A) by carrying development out on land (the clearing), being development which an environmental planning instrument provided may not be carried out except with development consent?
90 I propose to give the parties leave to address me as to whether this is the appropriate question to be answered and, if so, to make directions with respect to the steps necessary to enable further facts to be agreed or found so that I may answer this question.
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2 New South Wales, Hansard, Legislative Assembly, 19 November 1997, pp 2075 to 2078 (Mr Yeadon).1 See the summary of decisions with respect to separate questions (and the difficulties that frequently arise) in Greg Young v Parramatta City Council [2006] NSWLEC 116 at [6] to [12].
3 Ibid at p2076.
4 Ibid at pp 2076-2077.
5 Section 33 of the Interpretation Act 1987, which applies to environmental planning instruments by s 5(6).6 Section 34 of the Interpretation Act 1987.
7 New South Wales, Hansard, Legislative Assembly, 19 November 1997 p 2076.
8 Section 35 of the Interpretation Act 1987.
9 See Hanwood Pastoral Co Pty Ltd v Director-General of the Department of Natural Resources [2005] NSWLEC 664 on the intention that the NVC Act be a “one stop shop” for clearing native vegetation.
10 Saraswati v The Queen (1990) 172 CLR 1 at 17 per Gaudron J.
11 Powell v May [1946] 1 KB 330 at 336 citing Gentel v Rapps [1902] 1 KB 160 at 166. See also Stevens v Perrett (1935) 53 CLR 449.
12 Ex parte McLean (1930) 43 CLR 472 at 483 per Dixon J.
13 See, for example, the cases cited in D Pearce and S Argument, Delegated Legislation in Australia, 3rd ed at [19.23] and [19.24], including, in particular, Cullis v Ahern (1914) 18 CLR 540 at 543 (the reference to the statute prescribing “completely and exclusively” the limits of certain action), Tucker v Dickson (1981) 27 SASR 321 at 324 – 325 where King CJ refers to the “usual common law tests of repugnancy” and contrasts those tests with an express inconsistency provision in the relevant statute modelled on s 109 of the Constitution and Ex parte Kauter (1904) 4 SR (NSW) 209 at 212 – 213.
14 Clyde Engineering Company Limited v Cowburn (1926) 37 CLR 466 at 489 – 490.
15 Ibid.
16 State of Western Australia v Commonwealth (1995) 128 ALR 1 at 47.
17 Clyde Engineering Company Limited v Cowburn (1926) 37 CLR 466 at 490.
18 Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 at 541, citing K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309 at 312, 315 and 321. See also Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] to [70] per McHugh, Gummow, Kirby and Hayne JJ.
19 As in Oates & Anor v Director-General of Department of Infrastructure, Planning and Natural Resources [2004] NSWLEC 164.
20 New South Wales, Hansard, Legislative Assembly, 19 November 1997 p 2076.
22 If not qualified in this manner, the amended separate question would involve entering the realm of hypothesis, which would “not conform to the judicial process”: Bass v Permanent Trustee Co Ltd & Ors (1999) 198 CLR 334 at [53] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. See also Allstate Explorations NL and Ors v Beaconsfield Gold NL and Ors [1999] NSWSC 832 at [24] and Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002 at [2] – [4] per Sackville J.21 New South Wales, Hansard, Legislative Assembly, 19 November 1997 p 2076.
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