Council of the City of Ryde v Network Developments NSW Pty Ltd

Case •

[2022] NSWLEC 101

•

08 August 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Council of the City of Ryde v Network Developments NSW Pty Ltd [2022] NSWLEC 101
Hearing dates: 8 March 2022
Date of orders: 8 August 2022
Decision date: 08 August 2022
Jurisdiction:Class 4
Before: Pepper J
Decision:

Summons is upheld with costs. See orders at [97].

Catchwords:

JUDICIAL REVIEW: whether complying development certificate validly granted by certifier – whether at the time it was granted the development was prohibited or permissible with consent in the relevant zone – whether “development application” in a savings provision in a local environmental plan included complying development certificates – complying development invalid because development prohibited in the zone at the time of grant.

STATUTORY CONSTRUCTION: principles of construction of subordinate legislation, including environmental planning instruments – whether terms in subordinate legislation have same meaning as the principal Acts under which they are made – use of extrinsic material to construe subordinate legislation – presumption against retrospectivity – application of s 30(1)(b) and (c) of the Interpretation Act 1987 - whether right to apply for a complying development certificate under legislation prior to amendment a relevant right for the purpose of the Interpretation Act.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 4.2(5), 4.12, 4.15 and 4.28

Interpretation Act 1987, ss 5(2), 11, 30(1) and 34(1)

Ryde Local Environmental Plan 2014, cl 1.8A(3)

Ryde Local Environmental Plan 2014 (Amendment No 28)

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cll 1.17(1), 1.18(1)(b), 3B.1 and 3B.1A and Pt 3B

Cases Cited:

4Nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191; (2017) 95 NSWLR 361

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27

Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117

Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378

Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1

CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384

Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389

Director of Public Works v Ho Po Sang [1961] AC 901

Durham Holdings Pty Ltd v State of New South Wales [1999] NSWCA 324; (1999) 47 NSWLR 340

Eaton & Sons Pty Limited v The Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270

Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430

Harris v Hawkesbury Shire Council (1989) 68 LGRA 183

In the Matter of Richards Contracting Co Management Pty Ltd [2021] NSWCA 34; (2021) 104 NSWLR 385

In re Athlumney; Ex Parte Wilson [1898] 2 Q.B. 547

Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162

Lederer v Sydney City Council [2001] NSWLEC 272; (2001) 119 LGERA 350

Master Education Services Pty Limited v Ketchell [2008] HCA 38; (2008) 236 CLR 101

Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

Minister Administering Water Management Act 2000 v Sharkey [2017] NSWCA 319; (2017) 226 LGERA 322

R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2019) 269 CLR 507

Robertson v City of Nunawading [1973] VR 819

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178

Ungar v City of Malvern [1979] VR 259

Valuer-General v Fivex Pty Ltd [2015] NSWCA 53; (2015) 206 LGERA 450

Western Australian Planning Commission v Temwood Holdings Pty Limited [2004] HCA 63; (2004) 221 CLR 30

Wingecarribee Shire Council v De Angelis [2016] NSWCA 189

Texts Cited:

Perry Hertzfeld and Tom Prince, Interpretation (2nd ed, LawBook Co, 2020)

Category:Principal judgment
Parties: Council of the City of Ryde (Applicant)
Network Developments NSW Pty Ltd (First Respondent)
Waratah Certifiers Pty Ltd (Second Respondent)
Representation:

Counsel:
S M Berveling (Applicant)
T To (First Respondent)
Submitting Appearance (Second Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Cosmos Legal (First Respondent)
Mills Oakley (Second Respondent)
File Number(s): 2021/185557
Publication restriction: Nil

JUDGMENT

Waratah Certifiers Grants a Complying Development Certificate to Network

  1. The applicant, the Council of the City of Ryde (“the Council”), seeks an order setting aside a decision of the second respondent, Waratah Certifiers Pty Ltd (“Waratah”), to issue complying development certificate 2020/101 dated 26 March 2021 (“the CDC”), to the first respondent, Network Developments NSW Pty Ltd (“Network”).

  2. The CDC approved the demolition of an existing house and the construction of a four-unit manor house (or multi dwelling housing) (“the development”) in relation to land at Lot A DP 356666, known as 835 Victoria Road, Ryde (“the site”), under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“the Codes SEPP”).

  3. The development was able to be approved as complying development if multi dwelling housing on land zoned R2 Low Density Residential under the Ryde Local Environmental Plan 2014 (“RLEP”) was permitted by an environmental planning instrument.

  4. On 20 October 2020 Network lodged an application for the CDC with Waratah seeking approval for the development.

  5. At the time Network lodged an application for the CDC, and until 5 March 2021, the Land Use Table for the R2 zone permitted with consent development for the purpose of multi dwelling housing.

  6. However, on 5 March 2021 the RLEP was amended in a way that removed multi dwelling housing from the Land Use Table for the R2 zone. The amendments also inserted a savings provision, cl 1.8A(3), that stated that amendments made to the RLEP did not apply to “development applications made but not finally determined before the commencement of the amendments”.

  7. It was not in dispute that the CDC was determined by approval on 26 March 2021, that is, the day it was granted, and after the amendment referred to above came into effect.

  8. The Council submits that Waratah did not have power to issue the CDC because development for the purpose of a manor house, as multi dwelling housing, on the site was not permissible with consent as at the date that the CDC was issued, and therefore, it could not be complying development.

  9. I agree with the Council for the reasons that follow. At the time that the CDC was issued by Waratah the development was prohibited in the zone by the RLEP and Waratah had no power to issue the CDC. It is therefore invalid.

Statutory Framework Governing the Granting of the CDC

  1. As at the date that the CDC was issued the statutory regime outlined below applied.

  2. Clause 1.17(1) in Div 2 of Pt 1 of the Codes SEPP provided:

1.17   What development is complying development?

(1)   Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy.

  1. Clause 1.18(1)(b) of the Codes SEPP stated as follows:

1.18   General requirements for complying development under this Policy

(1)   To be complying development for the purposes of this Policy, the development must –

(b)   be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out…

  1. Clause 3B.1 of the Codes SEPP provided that:

3B.1   Development that can be complying development under this code

(1)   The following types of development are complying development under this code —

(a)   the erection or alteration of, or addition to –

(i)   any one or 2 storey dual occupancy, manor house or multi dwelling housing (terraces)…

  1. Clause 3B.1A of the Codes SEPP stated:

3B.1A   Development for the purpose of manor houses

Manor houses are, despite any other environmental planning instrument, permitted with consent on land in any of the following land use zones if multi dwelling housing or residential flat buildings (or both) are permitted in the zone—

(a)   Zone RU5 Village,

(b)   Zone R1 General Residential,

(c)   Zone R2 Low Density Residential,

(d)   Zone R3 Medium Density Residential.

  1. It was uncontentious that the RLEP applied to the site and that the site is located within the R2 – Low Density Residential zone under that instrument.

  2. At the time that the application for the CDC was lodged, the Land Use Table for the R2 zone under the RLEP stated the following in respect of permitted and prohibited land uses within that zone (emphasis added):

2   Permitted without consent

Home occupations

3   Permitted with consent

Bed and breakfast accommodation; Boarding houses; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies (attached); Dwelling houses; Environmental protection works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Hospitals; Multi dwelling housing; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Residential care facilities; Respite day care centres; Roads; Secondary dwellings; Tank-based aquaculture

Prohibited

Any development not specified in Item 2 or 3

  1. As alluded to above, on 5 March 2021 the RLEP was amended through the gazettal of the Ryde Local Environmental Plan 2014 (Amendment No 28) (“Amendment 28”). Critically, Amendment 28 omitted “multi dwelling housing” from Item 3 of the Land Use Table for the R2 – Low Density Residential Zone. However, it inserted cl 1.8A(3) into the RLEP.

  2. Clause 1.8A(3) of the amended RLEP was in the following terms (emphasis added):

(3)   The amendments made to this Plan by Ryde Local Environmental Plan 2014 (Amendment No 28), other than new clause 4.1A(b), do not apply to development applications made but not finally determined before the commencement of the amendments.

  1. Prior to the promulgation of Amendment 28, on 30 May 2020 the Department of Planning, Industry and Environment issued a planning proposal to amend the RLEP, namely, the Place, Design and Public Spaces Gateway determination report (“the Gateway determination report”).

  2. The Gateway determination report stated that the planning proposal was the result of the Council’s draft Local Housing Strategy dated February 2020. The report was considered by the Council on 24 March 2020. In this context, the Gateway determination report noted that:

A key action of Council’s draft LHS is the preparation of a planning proposal to prohibit multi dwelling housing in the R2 Low Density Residential zone and increase the minimum lot size for dual occupancies to manage housing growth anticipated as complying development under the Low Rise Medium Density Housing Code (Code).

  1. The report also stated that the planning proposal asserted that “the proliferation of low rise medium density housing would have a significant adverse impact on the existing character of the R2 zone” and that:

Th[e] planning proposal asserts the proliferation of how rise medium density housing would have a significant adverse impact on the existing character of the R2 zone; undermine the existing hierarchy of the residential zones; would not be consistent with the existing and proposed infrastructure capacities and would not be sustainable into the future.

The planning proposal states (page 6):

With the introduction of Part 3B of the SEPP, the planning controls in Ryde LEP 2014 for Dual Occupancy, Multi dwelling housing (terraces) and Manor Houses will be overridden and significantly relaxed. These developments would also be complying development under the SEPP and the current design and development standards will no longer apply.

This statement is incorrect as the Code uses the minimum lot size for dual occupancies and multi dwelling housing in an LEP where this is specified. Only where the LEP does not specify a minimum lot size for such development will the lot requirements in the Code be utilised. Currently Ryde LEP 2014 requires a minimum lot size of 580 square metres for dual occupancies (attached) and 900 square metres for multi dwelling housing in the R2 zone. A Gateway condition is recommended to update the planning proposal to clarify that the Code does not override, but in fact utilises, the minimum lot sizes in an LEP where this is specified for dual occupancies and multi dwelling housing.

…

The Code allows well designed dual occupancies, manor houses and terraces (up to two storeys) under a fast track complying development approval (Figure 2). A development proposal must meet all of the development standards in the Code and the Design Criteria in the supporting Low Rise Medium Density Design Guide for complying development. A complying development certificate can be issued within 20 days if the proposal complies with all the relevant requirements in the Code.

Low rise medium density housing as complying development is only permitted in the following zones where councils already allow it under their Local Environmental Plan (LEP):

  • Zone RU5 Village,

  • Zone R1 General Residential,

  • Zone R2 Low Density Residential,

  • Zone R3 Medium Density Residential.

  1. Explicit reference was made to both the Codes SEPP and the RLEP, and in this regard the Gateway determination report noted that (emphasis added):

Dual occupancies under the Code are permitted where council’s LEP permits dual occupancies.

This means that if the Code applies to a local government area, applicants may lodge a development application under the relevant LEP or carry out complying development under the Code for manor houses, multi dwelling housing (terraces) or dual occupancies, where they are permitted in a zone.

Once multi dwelling housing is prohibited in the R2 Low Density Residential zone under Ryde LEP 2014, manor houses and multi dwelling housing (terraces) cannot be developed in this zone, whether it be through a complying development certificate or development consent.

  1. Section 4.5 of the Gateway determination report dealt with SEPPs. It made reference to the Codes SEPP in the following terms:

The Low Rise Medium Density Housing Code (Code) aims to provide greater housing choice and facilitate faster housing approvals for medium density development. The Code allows well designed dual occupancies, manor houses and terraces (up to two storeys) to be carried out under a fast track complying development approval. A development proposal must meet all of the development standards in the Code and the Design Criteria in the supporting Low Rise Medium Density Design Guide for complying development.

The Code commenced on 6 July 2018, however Ryde Council received temporary deferral of the Code until 1 July 2020.

In relation to the planning proposal, the Code will additionally permit manor houses and multi dwelling housing (terraces) where multi dwelling housing is currently permitted under Council’s LEP. As such, the proposal to remove multi dwelling housing from the R2 Low Density Residential zone will preclude these types of development from being carried out under the Code.

A Gateway condition is recommended requiring the planning proposal to be updated prior to public exhibition to provide quantitative analysis demonstrating the number of lots that would be eligible for dual occupancies, manor houses and multi dwelling housing (terraces) permitted under the Code, taking into account land excluded from the Code.

  1. Significantly, in relation to the sections dealing with “Savings and Transitional Provisions” (section 6) and “Consultation” (section 7), the Gateway determination report said as follows (emphasis added):

6. SAVINGS AND TRANSITIONAL PROVISIONS

A Gateway condition is recommended requiring the planning proposal to be updated prior to public exhibition to include a savings transitional clause to ensure any development applications lodged and not determined are not adversely impacted by the proposed changes.

7. CONSULTATION

A Gateway condition is recommended requiring that Council write to all affected landowners about the exhibition of the proposal explaining the proposed changes and what they mean for the landowner. Landowners affected by the proposal include those within land zones R2 Low Density Residential and those that are affected by the proposed changes to planning controls for dual occupancies (attached), such as those zones other than R2 where this form of development is permitted. …

  1. A subsequent Gateway determination was published by the Department on 1 June 2020. It stated that (emphasis added):

I, the Executive Director, Eastern Harbour City, at the Department of Planning, Industry and Environment as delegate of the Minister for Planning and Public Spaces, have determined under section 3.34(2) of the Environmental Planning and Assessment Act 1979 (the Act) that an amendment to Ryde Local Environmental Plan (2014) (Ryde LEP) to remove multi dwelling housing as a permitted use in Zone R2 Low Density Residential and amend planning controls for dual occupancies (attached) should proceed subject to the following conditions:

…

(f)   include a new savings and transitional clause to ensure that proposed amendments do not affect any development applications or appeal processes…

  1. Following the publication of these Gateway determination reports, on 26 March 2021 Waratah purported to issue to Network the CDC approving the development subject to conditions. The CDC was published on the Council’s website on 25 June 2021.

  2. Accordingly, whether or not the construction of the manor house was permissible as at the date of the issuing of the CDC was dependent upon whether or not development for the purpose of multi dwelling housing was permissible within the R2 zone at that time.

  3. Prior to the commencement of Amendment 28 on 5 March 2021, the Land Use Table for the R2 zone under the RLEP permitted with consent the development of a manor house. Amendment 28 omitted “multi dwelling housing” from Item 3 of the Land Use Table for the R2 – Low Density Residential Zone, thereby prohibiting the proposed development within the zone.

  4. The term “development application” is not defined in the RLEP, including in cl 1.8A(3). The term “development application” is, however, defined in s 1.4 of the Environmental Planning and Assessment Act 1979 (“the EPAA”) to mean (emphasis added):

(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires-

…

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.

  1. The definition of the term “development application” in s 1.4 of the EPAA therefore expressly excludes applications for CDCs.

  2. The definition of “development application” in the EPAA applies to the RLEP by reason of the Dictionary in the latter instrument, which provides that the EPAA “contains definitions and other provisions that affect the interpretation and application of this Plan”.

  3. In respect of the Interpretation Act 1987, s 30(1) relevantly provides:

30   Effect of amendment or repeal of Acts and statutory rules

(1)   The amendment or repeal of an Act or statutory rule does not—

…

(b)   affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or

(c)   affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule…

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

  1. And s 34(1) of that Act permits:

34   Use of extrinsic material in the interpretation of Acts and statutory rules

(1)   In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material—

(a)   to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b)   to determine the meaning of the provision—

(i)   if the provision is ambiguous or obscure, or

(ii)   if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

Issues for Determination

  1. It was common ground between the parties that the application of Pt 3B of the Codes SEPP depended upon permissibility of the development as multi dwelling housing within the RLEP. Absent such permissibility, the CDC could not be lawfully granted because the development was prohibited in the zone.

  2. The gravamen of the dispute, therefore, is whether the application for the CDC was saved from the operation of Amendment 28 by cl 1.8A(3) of the RLEP.

  3. More specifically, the issues for determination in these proceedings are essentially three-fold:

  1. first, was development in the form of a manor house permissible on the site at the time Waratah determined to issue the CDC;

  2. second, does the savings provision in cl 1.8A(3) of the RLEP have the effect that Amendment 28 did not apply to the application for the CDC, which was made but not finally determined before the commencement of Amendment 28; and

  3. third, does s 30(1)(b) or (c) of the Interpretation Act operate to prevent Amendment 28 from applying to the determination of the CDC?

Submissions of the Parties

  1. The submissions of the Council may be summarised as:

  1. first, cl 1.8A(3) of the RLEP is clear and unambiguous insofar as it relates only to development applications made but not finally determined before the commencement of Amendment 28. It makes no reference to a CDC, and therefore, cl 1.8A(3) cannot save the CDC;

  2. second, as a consequence, upon the commencement of Amendment 28 on 5 March 2021, cl 3B.1 of Pt 3B of the Codes SEPP no longer permitted development with consent for the purpose of multi dwelling housing, which included the proposed manor house on the site; and

  3. third, therefore, because the development was prohibited as at 5 March 2021, Waratah did not have the power to issue the CDC on 26 March 2021.

  1. In reply, Network contended that the CDC was able to be determined as if the amendment to the Land Use Table in the RLEP occasioned by Amendment 28 had not been made, and therefore, development for the purpose of multi dwelling housing remained permissible in the R2 zone with the consequence that the CDC was lawfully granted. This was because:

  1. first, the application of cl 1.8A(3) of the RLEP did not have the effect that the Council contended having regard to the context and subject-matter of the clause as a savings provision and by analogy with the presumption against retrospectivity (see Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 266-267). Were it otherwise, Amendment 28 would operate unjustly and unfairly with respect to applications for CDCs lodged before Amendment 28 came into force. Accordingly, cl 1.8A(3) should be construed to encompass all applications to carry out development, including CDCs. This was consistent with the substance of the Gateway determination report;

  2. second, the operation of s 30(1)(b) of the Interpretation Act meant that the amendment made by Amendment 28 did not affect the previous operation of the RLEP, including the Land Use Table for the R2 zone; and

  3. third, the operation of s 30(1)(c) of the Interpretation Act expressly preserved accrued rights, which included the making of the application for the CDC.

The CDC Was Invalidly Granted by Waratah

The Proper Construction of Cl 1.8A(3) of the RLEP

  1. The general principles relating to the interpretation of primary legislation are equally applicable to the construction of subordinate legislation, which includes environmental planning instruments such as the RLEP (Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389 at 398, Master Education Services Pty Limited v Ketchell [2008] HCA 38; (2008) 236 CLR 101 at [19] and 4Nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191; (2017) 95 NSWLR 361 at [45]).

  2. These principles require that the legislative language be read in context having regard to the objectives that it was designed to promote, however, the primary focus must remain on the text (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], 4Nature at [51] and Valuer-General v Fivex Pty Ltd [2015] NSWCA 53; (2015) 206 LGERA 450 at [26]).

  3. The context in which subordinate legislation is to be construed includes the legislation under which it is enacted (Ketchell at [19]). Therefore, the intention of the legislation as indicated in the enabling Act will be a primary guide to the meaning of delegated legislation, such as the RLEP.

  4. Generally, and subject to any contrary intention, where an Act confers the power to make an instrument, expressions used in that instrument have the same meaning as the enabling legislation. This is consistent with s 11 of the Interpretation Act which provides that:

11    Words etc in instruments under an Act have same meanings as in the Act

Words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made.

  1. Therefore, having regard to the definition of “development application” in s 1.4 of the EPAA, it would appear that a development application does not include a CDC for the purpose of the EPAA, and hence, cl 1.8A(3) of the RLEP does not apply to save the CDC.

  2. Network, however, referred to the chapeau of s 1.4(1) of the EPAA to argue that the “context or subject-matter” of the definition of “development application” in that Act included the fact that s 1.8A(3) of the RLEP was a savings provision seeking to preserve the pre-existing state of the law so that applications for development approval that had been made but not determined prior to Amendment 28 remained untouched by the change in law.

  3. Another aspect of the context was that, according to Network, cl 1.8A(3) “is informed by, and gives effect to” the common law presumption, according to network, against retrospectivity as a means of avoiding unfairness or injustice to those who had lodged “applications” before Amendment 28 came into effect.

  4. Network relied upon the Gateway determination report, which it claimed was the source of the savings provision, to support an expansive interpretation of cl 1.8A(3) of the RLEP to include applications for CDC on the basis that the report expressly referred to both development applications and CDCs.

  5. Network therefore contended that the proper construction of cl 1.8A(3) of the RLEP meant “applications to carry out development”. Otherwise, Amendment 28 applied differently to development applications compared to CDCs, which led to perversity and was incompatible with the objective of the savings provision.

  6. Accordingly, Network submitted that when regard is had to context, the term “development applications” in cl 1.8A(3) does not have an identical meaning to that contained in s 1.4(1) of the EPAA, but means “applications to carry out development”, which encompasses CDCs.

  7. There is no doubt that if the definition of “development application” contained in s 1.4(1) of the EPAA is imported into cl 1.8A(3) of the RLEP, the outcome is that, while development applications for multi dwelling housing such as a manor house are saved by the clause, applications for CDCs are not.

  8. But however “perverse” this result may appear, it is what the text of cl 1.8A(3) of the RLEP demands and there is no warrant for the construction afforded to the provision mooted by Network, even when recourse is had to context.

  9. First, this conclusion is mandated by the express language of the clause; it is what it states. The words are plain and unambiguous. The text does not say, as it so easily could have done, “applications for development”. To interpret the term “development application” in this manner is to insert words into the provision that cannot be justified. The provision is tolerably clear on its face.

  10. Second, while unreasonable results are to be avoided in the construction of legislation, including environmental planning instruments (Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]), the application of this canon of interpretation depends upon the care with which the language in question has been used in the instrument (4Nature at [44]-[45] and [107]-[108]). The approach has, therefore, been held to be inapplicable to a State environmental planning policy which used language taken directly from the empowering Act (4Nature at [44]-[45] and [107]-[108]). As was stated in Minister Administering Water Management Act 2000 v Sharkey [2017] NSWCA 319; (2017) 226 LGERA 322 (at [36]):

36   … the Minister submits that subordinate instruments such as those in question here should be given a “practical interpretation”. It is said the construction adopted by the primary judge leads to impractical consequences making it unlikely that interpretation could have been intended. The principle is that stated by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 934. However, as was emphasised by Basten JA (McColl and Payne JJA agreeing) in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20] that principle “does not, however, require an abandonment of basic principles of statutory construction, which require attention to the language of the instrument and its apparent purpose”.

  1. The term “development application” is expressly defined in s 1.4(1) of the EPAA to exclude CDCs. In the absence of any contrary indication, it may be assumed that the drafters of cl 1.8A(3) of the RLEP were aware of this definition and did not intend to deviate from it. This is a powerful contextual indicator that the term “development application” in cl 1.8A(3) does not include CDCs.

  2. Third, recourse to the presumption against retrospectivity, even if by analogy, does not assist Network. Although the presumption is, according to the learned authors Perry Hertzfeld and Tom Prince in Interpretation (2nd ed) (LawBook Co, 2020) a longstanding one, it may be rebutted by express words or necessary intendment (pp 236-237). In the present case, the retrospective operation of cl 1.8A(3) cannot be avoided “without doing violence to the language of the enactment” in the manner described immediately above (Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 22 quoting In re Athlumney; Ex Parte Wilson [1898] 2 Q.B. 547 at 551). Put another way, for the presumption to apply, cl 1.8A(3) of the RLEP would require rewriting as proposed by Network in a manner contrary to the text, and as it transpires, the context of the enactment of the provision.

  3. Fourth, the same conclusion is reached having regard to the content of the Gateway determination report, contrary to the reliance placed upon it by Network.

  4. The modern approach at common law in relation to the use of extrinsic material is that any material may be considered (CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 at 408 and SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] and [36]-[37]).

  5. Limits are, however, placed on the use that is made of the extrinsic material. Thus it cannot be used to displace the text where there is no ambiguity, or to place upon words a meaning that they cannot reasonably bear. In other words, it is erroneous to look at extrinsic materials, as Network seeks to do, prior to exhausting the application of the ordinary rules of statutory construction (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [33]).

  6. While the reasoning in CIC Insurance and Saeed is not easily reconciled, the approach in CIC Insurance has been subsequently endorsed (SZTAL at [14] and [36]-[37] and R v A2; R v Magennis; R v Vaziri [2019] HCA 35; (2019) 269 CLR 507 at [33]). Nevertheless, it remains the case that extrinsic material cannot displace unambiguous statutory text and in the present case, for the reasons given above, the legislative language is sufficiently clear (Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [70]).

  7. It is accurate to note that the Gateway determination report refers to the desire to prohibit multi dwelling houses “whether it be through a complying development certificate or development consent” and recommends that a savings and transitional clause be included to ensure that “any development applications lodged and not determined” are not adversely impacted by the proposed changes. Network relied, in particular, on the express reference to CDCs and the reference to the plural of “development applications” in the Gateway determination report to submit that the report was recommending that the savings and transitional clause that resulted in the promulgation of cl 1.8A(3) of the RLEP included applications for both development consents and CDCs.

  8. In my opinion, this contention must be rejected when regard is had to the content of the Gateway determination report because:

  1. the Gateway determination report makes it abundantly clear that multi dwelling housing that would otherwise be complying development was to be prohibited;

  2. the reference to development consents and CDCs also make it clear that the difference between the two forms of approval was understood, was to be maintained and was not conflated by reference to “development application” or “development applications”. If the report had intended to include CDCs in its recommended savings and transitional provision, it would have done so by including, as it did elsewhere in the report, an explicit reference to that form of approval;

  3. there is extensive reference throughout the report to the concept of a “development application” and not to development approvals or applications for development (which would arguably include CDCs); and

  4. the reference to “development applications” is, on any reasonable construction of that term, a reference to more than one development application. It ought not be construed as a reference to applications for CDCs and other forms of development approvals.

  1. In my view, therefore, the Gateway determination report confirms the meaning of the phrase “development application” in cl 1.8A(3) of the RLEP as excluding CDCs.

  2. If there was any ambiguity created by the Gateway determination report it could have been clarified by the Gateway determination published 1 June 2020. It was not. Rather, the same term was used, namely, “development application” thereby reinforcing the conclusion that the savings and transitional provision only applied to, as its text plainly indicated, development applications and not CDCs.

  3. Fifth, and finally, far from resulting in “perversity”, one explanation for the RLEP saving development applications for multi dwelling houses in the R2 zone and not applications for a CDC in respect of the same development, is because, as was recognised by Network, an application for a CDC is not the same as an application for a development consent. Whereas the latter involves the exercise of a detailed and considered evaluative decision-making discretion (see ss 4.12 and 4.15 of the EPAA), the former does not (see s 4.2(5) of the EPAA). A CDC is granted once specified predetermined development standards are met (s 4.28(3) of the EPAA). If, as was evident by the Gateway determination report, the purpose of Amendment 28 was to give effect to the intention to prohibit all multi dwelling housing in the R2 zone for the reasons expressed therein, the different results in the application of the savings provision contained in cl 1.8A(3) of the RLEP reflects the different ability to regulate such development under the two approval processes. Unlike an application for a CDC where, upon a finding that the specified predetermined development standards have been met the CDC must be issued, the assessment of a development application is more complex and polycentric decision-making process, resulting in the exercise of a discretion to refuse, approve, or approve the development subject to the imposition of conditions. In respect of a development application the consent authority therefore has far greater assessment oversight over the proposed development.

  4. It follows that unless the application of s 30(1(b) or (c) of the Interpretation Act provides a separate basis for the lawfulness of the CDC it is invalid because cl 1.8A(3) only operates to save development applications and not CDCs.

The Application of s 30 of the Interpretation Act

  1. The parties correctly agreed that s 30(1) of the Interpretation Act applies to environmental planning instruments such as the RLEP (s 5(6) of that Act).

  2. As was observed in In the Matter of Richards Contracting Co Management Pty Ltd [2021] NSWCA 34; (2021) 104 NSWLR 385, s 30(1) is a statutory reflection of the position at common law (at [81]):

81 Section 30(1) is consistent with the position at common law. The position was summarised by Dixon J in Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647; [1945] HCA 29 as follows (at 652):

“As the request for a hearing of the appellant’s application for redemption had been filed before Act No. 42 of 1944 came into operation, this case might be dealt with on the limited question whether the amendment effected by s. 4(g) of that statute in clause 18 of the First Schedule of the Workers’ Compensation Act 1912–1941 applied to pending proceedings. But it is more satisfactory to decide the wider question whether the amendment applies to cases in which the injury by accident was caused to the worker before the amending Act came into force. The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred. In other words, liabilities that are fixed, or rights that have been obtained, by the operation of the law upon facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends, appears with reasonable certainty. But, when the alteration in the law relates to the mode in which rights and liabilities are to be enforced or realized, there is no reason to presume that it was not intended to apply to rights and liabilities already existing and its application in reference to them will depend rather upon its particular character and the substantial effect that such an operation would produce.”

See also Maxwell v Murphy (1957) 96 CLR 261 at 266–267; [1957] HCA 7.

Section 30(1)(b) of the Interpretation Act

  1. Network submitted that because it was incontrovertible that the application for the CDC was commenced under the RLEP, by application of s 30(1)(b) of the Interpretation Act the amendment made by Amendment 28 did not affect a “previous operation of the RLEP”, including the Land Use Table for the R2 zone. That is, by operation of s 30(1)(b), the process of determination of the CDC application was continued as if the RLEP had not been altered by Amendment 28.

  1. Importantly, this outcome was said to result even if cl 1.8A(3) was construed only to apply to development applications as defined in s 1.4(1) of the EPAA.

  2. While the application for the CDC was lodged prior to the commencement of Amendment 28, it had not yet been determined. In this sense, therefore, nothing had “commenced” pursuant to s 30(1(b) of the Interpretation Act and s 30(1)(b) has no application.

  3. Adopting similar reasoning, the same conclusion was arrived at in Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162 (at 191 per Dowsett J):

To similar effect is the decision in Nunawading at 825-826. It follows from these cases that s. 20(1)(b) in its previous form did not permit an extant application to proceed to ultimate determination as if the amendment had not occurred. However, the appellant submits that in its present form, the section protects a process begun under legislation which has been subsequently amended or repealed and that such process may be continued as if the amendment or repeal had not occurred. I am unable to accept this submission. Given the narrower meaning traditionally attributed to precursors of s. 20(1)(b), it is likely that Parliament intended that things the subject of this paragraph be protected in the same way as were things the subject of its precursor, although the range of such things was extended by the addition of the word “begun”. In other words, as in Ho Po Sang, the act or process suffered, done or begun is not affected, but it cannot be carried to completion if the law in its amended form does not allow of that course.

In any event, I cannot identify anything which can be reasonably described as “begun” in this case. The word implies the commencement of a process which remains incomplete. It is possible to describe an application for an approval as the beginning of the process of obtaining that approval, but such is not a common usage. It is more common to say that one has made an application for approval than that one has begun a process which may lead to the obtaining of approval. The word “begun” is more appropriately used in connection with proceedings such as legal proceedings which have a recognizable continuity over a period of time. Applications involving a series of prescribed sequential steps might also be described as “begun”. There may be other examples. The present application had to be either granted or refused. It cannot be comfortably described as “begun” simply because it had not been decided. Even assuming that the application began some process, that process was not begun under the repealed provision which said nothing about such an application. Although it is likely that in order to obtain an approval under the former s. 153, some sort of application would have been made, such a step was not expressly contemplated by s. 153. The application cannot be accurately described as “begun” under the repealed provision.

  1. While not binding on this Court, the reasoning is nevertheless apposite.

  2. In any event, Network’s submission can be rejected for more fundamental reasons. Section 30(1) of the Interpretation Act is subject to any contrary intention (s 5(2) of that Act). And as determined above, a contrary intention is manifest by the plain and unambiguous words of cl 1.8A(3) of the RLEP, namely, that the provision only applies to development applications and not to all applications for development approval. In other words, the legislature intended to abrogate permissibility with consent applying to multi dwelling housing within the R2 zone, with the only exception being to development applications lodged prior to Amendment 28 coming into effect.

  3. This conclusion is consistent with the underlying rational of s 30(1), namely, to give statutory force to the common law presumption against retrospectivity (Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117 at [24]). It is therefore unsurprising that the same result as that arrived at above with respect to the common law presumption against retrospectivity is obtained by the application of s 30(1)(b) of the Interpretation Act.

Section 30(1)(c) of the Interpretation Act

  1. Again, s 30(1)(c) of the Interpretation Act is subject to any contrary intention (s 5(2) of that Act). Therefore, it is strictly not necessary to determine if an application for a CDC constitutes a “right” or “privilege … acquired” or “accrued” for the purpose of s 30(1)(c) of the Interpretation Act because, as held above, a contrary intention is manifest by the plain and unambiguous words of cl 1.8A(3), namely, that the savings clause only applies to development applications and not to all applications for development approval, including CDCs.

  2. The question that arises if this conclusion is wrong, however, is whether Amendment 28 affected any relevant right or privilege accrued by the making of the CDC for the purpose of engaging s 30(1)(c) of the Interpretation Act.

  3. The words “right, privilege … acquired” or “accrued” are to be given a wide construction and are not to be used in a technical sense (Western Australian Planning Commission v Temwood Holdings Pty Limited [2004] HCA 63; (2004) 221 CLR 30 at [96] and Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1 at [117]).

  4. But the words have limits (Chang at [116]). There is no right to take advantage of an existing statute (Mathieson v Burton at 23).

  5. The operation of s 30(1)(c) of the Interpretation Act cannot be considered absent a clear understanding of the nature of the rights claimed to have arisen under a particular statute (In the Matter of Richards Contracting at [84]).

  6. Initially, Network claimed that the right was “the right to have the application determined according to the law as it stood at the time of the making of the application because the nature of the discretion was non-discretionary” (T28:26-28). However, after some discussion, the nature of the right claimed was refined to having the CDC application determined pursuant to the RLEP as unaltered by Amendment 28 (T28:36-41).

  7. Network relied on later decisions in Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 and Lederer v Sydney City Council [2001] NSWLEC 272; (2001) 119 LGERA 350 to argue that a development approval (including a CDC) granted under a particular statutory regime constituted a privilege or a right for the purpose of s 30(1)(c) of the Interpretation Act, contrary to the earlier obiter dicta expressed in Eaton & Sons Pty Limited v The Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270 (at 293-294 per Stephen J, references omitted):

…there are two features of consent granted under schemes such as those here in question which appears 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, 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.

Secondly, I doubt whether it is proper to regard as a “right” or “privilege” acquired or accrued under the County Scheme what is no more than the relaxation of a prohibition imposed by that very Scheme. The Scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant’s land enable the renewed exercise of that liberty in very qualified way if a consent from the responsible authority was first sought and obtained. To describe that situation as one in which a right or privilege had accrued to or been acquired by the appellant under the Scheme appears to be to be a misuse of language; the effect of the Scheme when a permit is issued under it is merely that users of relevant land are in part remitted to their former liberties at general law.

  1. In my opinion, neither Harris nor Lederer assist and are distinguishable from the present case insofar as they concerned a development consent that had already been determined and granted prior to the change in law. That is not the case here. The CDC had not been determined as at the date that Amendment 28 came into effect.

  2. Furthermore, earlier authorities such as Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 (at 618-620), Robertson v City of Nunawading [1973] VR 819 (at 825) and Ungar v City of Malvern [1979] VR 259 (at 264 and 265-266) have held that resort to an enactment by the making of an application under which there is an expectant benefit or advantage from that application, is not productive of a right or privilege that cannot be impaired by a change in legislation.

  3. However, these cases do not necessarily sit easily against authorities such as The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178 and In the Matter of Richards Contracting.

  4. In The Dubler Group, it was held that an appellant who appealed to the Court against the deemed refusal of a development application acquired a right when the relevant environmental planning instrument was amended to effectively exclude the development the subject of the appeal from certain saving provisions. The Court of Appeal, after observing that “the distinction between what is and is not a right is often a fine one” (at [29]), held that the savings provisions put a person who had made a development application in a special position in the determination of that application, and therefore, the person acquired a relevant right for the purpose of s 30(1)(c) (at [29]-[30]. Citing Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430). While the appellant did not have an entitlement to an appeal, it had acquired an entitlement to have its development application determined according to the planning instrument as it stood at the time the application was lodged. In other words, this was more than the mere taking advantage of an enactment because the advantage had already been taken and the entitlement had already arisen (at [36]).

  5. In the Matter of Richards Contracting was not a planning case but concerned the reinstatement of a company in order to obtain a judgment against it in the Dust Diseases Tribunal by a plaintiff. Again, the Court of Appeal held that the plaintiff had accrued a right as a person aggrieved to seek the reinstatement of the putative defendant company as at the time legislation conferring this right was repealed. The plaintiff’s claim against the company had crystallised prior to the abrogation of the legislation. The right was not merely to approach the court for the exercise of a discretion in the plaintiff’s favour (at [102]). The effect of the repeal of the legislation was to deprive the plaintiff of an accrued cause of action against the company. It amounted to more than an asserted right to take advantage of an enactment available to all members of a class (at [103]-[105]).

  6. Both The Dubler Group and In the Matter of Richards Contracting can be distinguished from the present facts, and moreover, upon further analysis may be reconciled with Sofi, Nunawading and Malvern. In The Dubler Group the development application had been determined by way of refusal. Similarly, in In the Matter of Richards Contracting, the plaintiff’s cause of action against the company pre-existed the repeal of the legislation because he had been certified as having a dust disease (silicosis), a necessary precondition to commencing an action against the deregistered company. In both decisions, therefore, the right had already accrued prior to the change in the law.

  7. That is not this case, where no determination of the CDC application had been made by Waratah prior to the amendment of the RLEP. The asserted right that accrued to Network was, to use the language in In the Matter of Richards Contracting, merely to take advantage of a enactment available to all members of the community (at [104]). That is not an accrued right falling within the purview of s 30(1)(c) of the Interpretation Act.

  8. Does the nature of the evaluative process by Waratah in respect of the application for a CDC compel a different conclusion?

  9. Network argued that it did. It submitted that the more open discretionary nature of the assessment of a development application compared to the more rigid evaluation process required to determine an application for a CDC, gave rise to a relevant right that was preserved by the operation of s 30(1)(c) of the Interpretation Act (citing Durham Holdings Pty Ltd v State of New South Wales [1999] NSWCA 324; (1999) 47 NSWLR 340 at [28], Kentlee at 168 and Esber. CfDirector of Public Works v Ho Po Sang [1961] AC 901). That is, a right to the grant of a CDC once material facts, namely, objective conformity with prescribed development standards, were established.

  10. I do not accept the submission. First, that such a distinction (between discretionary inchoate rights and non-discretionary choate rights) exists is not clear on the authorities that the Court was taken to. In neither Esber, Durham nor Kentlee was the position expressed as unequivocally as Network suggested.

  11. Second, while the evaluative determination by a certifier is materially different to the more plenary discretionary decision-making power exercised by a consent authority when assessing a development application (compare ss 4.15 and 4.28 of the EPAA), it is not correct to assert, as Network does, that the certification process amounts to mere administrative box ticking. The Council took the Court to various aspects of the Codes SEPP to demonstrate that there was no guarantee of certification of the development having regard to the evaluative assessment required by Waratah in determining whether the proposed manor house amounted to complying development. This proposition may be accepted.

  12. In my view, there is not, as Network contended, such an absence of discretion that would, analogous to the result in In the Matter of Richards Contracting, compel the conclusion that a right had accrued for the purpose of s 30(1)(c) of the Interpretation Act.

  13. Finally, and for the sake of completeness, I reject the submission made by the Council that s 30(1)(c) of the Interpretation Act is not engaged because the RLEP neither provided for the right to lodge the application for the CDC nor did it deal with the issue of the permissibility of the proposed development for a manor house, both of which were occasioned by the operation of the EPAA and the Codes SEPP.

  14. Were there a relevant right, that right accrued under the RLEP insofar as the development was either permissible with consent or prohibited under that environmental planning instrument. If not the former, then the assessment process under the EPAA and the Codes SEPP was not engaged. That is, it was the permissibility of the proposed development under the RLEP that enlivened any assessment under the EPAA and the Codes SEPP.

Conclusion and Orders

  1. It follows that the declaratory relief sought in the summons as to the invalidity of the CDC ought to be granted, together with the consequential injunctive relief described therein.

  2. These being Class 4 proceedings where costs usually follow the event, and there being no reason to depart from this general rule, Network must pay the Council’s costs of the proceedings.

  3. The formal orders of the Court are therefore as follows:

  1. the Court declares that the CDC issued to Network by Waratah pursuant to s 4.28 of the EPAA on 26 March 2021 is invalid;

  2. Network is restrained from undertaking any development in reliance upon the CDC;

  3. Network is to pay the Council’s costs of the proceedings as agreed or assessed; and

  4. the exhibits are to be returned.

**********

Decision last updated: 08 August 2022

Cases Citing This Decision

0

Cases Cited

31

Statutory Material Cited

5

4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191
Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41