Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd - [2010] NSWCA 214

Reported Decision: 175 LGERA 433

New South Wales

Court of Appeal

CITATION: Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd & Ors [2010] NSWCA 214

HEARING DATE(S): 29 July 2010

JUDGMENT DATE:
2 September 2010

JUDGMENT OF: Tobias JA at 1; McColl JA at 46; Handley AJA at 47

DECISION: (a) Appeal dismissed.
(b) The appellant to pay the first and second respondents’ costs of the appeal up to and including 11 July 2010 and to pay the third respondent’s costs of the appeal from and including 12 July 2010.

CATCHWORDS: ENVIRONMENT AND PLANNING – development control – planning instruments – local environmental plan – Ku-ring-gai LEP 194 – interpretation – whether approval of Governor required under s 28(3) of EPA Act to provisions of LEP 194 that effected change of zoning – whether provisions of LEP 194 provide that regulatory instrument specified in LEP 194 shall not apply to any particular development STATUTORY INTERPRETATION – extrinsic material – dictionaries – definition of “provide”, “provision” and “tenor” - STATUTORY INTERPRETATION – principles – context reading provision in – plain and unambiguous text giving effect to – purposive approach STATUTORY INTERPRETATION – EPA Act, s 28(2) and (3) – “provide”, “provision”, “regulatory instrument”, “specify”, “tenor”

LEGISLATION CITED: Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Income Tax Act 1952 (UK)
Interpretation Act 1987
Ku-ring-gai Local Environmental Plan No 74
Ku-ring-gai Local Environmental Plan No 194
Ku-ring-gai Planning Scheme Ordinance
Local Government Act 1919
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979

CATEGORY: Principal judgment

CASES CITED: Commissioner of Stamps (SA) v Telegraph Investment Co to Ltd [1995] HCA 34; 184 CLR 453
Container Terminals Aust Ltd v Xeras (1991) 23 NSWLR 214
Coshott v Ludwig (1997) NSW ConvR 56,366
Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2009] NSWSC 717
Cumerlong Holdings Pty Limited v Dalcross Properties Limited & Anor (No 2) [2009] NSWSC 1157
Inland Revenue Commissioners v Kenmare [1956] 1 Ch. 483
IRC v Jamieson [1964] AC 1445
McMorran v Marrison (Contractors) Ltd [1944] 2 All ER 448
Reid v Allan (1849) 4 Ex 326; 154 ER 1237
Re The Arthur Average Association Ex parte Cory (1875) 44 LJ (NS) 569
Toowoomba Foundry Pty Ltd v The Commonwealth (1945) 71 CLR 545
Walsh v Secretary of State for India [1863] 10 HLC 367; 11 ER 1068

TEXTS CITED: A Delbridge et al, Macquarie Dictionary, 3rd ed (rev) (2001) Macquarie Dictionary Publishers
Bryan A. Garner, Black’s Law Dictionary, 8th ed (2004) West Group
Daniel Greenberg, Stroud’s Judicial Dictionary of Words and Phrases, 7th ed (2006), vol 3, Sweet & Maxwell
Earl Jowitt and Clifford Walsh, The Dictionary of English Law, 1st ed (1959) Sweet & Maxwell Ltd
J Simpson and E Weiner (eds), The Oxford English Dictionary, 2nd ed (1989), vol XII, Clarendon Press

PARTIES: Cumerlong Holdings Pty Limited
Dalcross Properties Pty Limited
Dalcross Holdings Pty Limited
Australasian Conference Association Pty Limited

FILE NUMBER(S): CA 2009/298592

COUNSEL: A: P McEwen SC / N Eastman
1,2&3R: A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWCA 214
Decision Date: 2 September 2010

CaseChat Overview and Summary

Cumerlong Holdings Pty Ltd (the appellant) appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision concerning the interpretation of the Ku-ring-gai Local Environmental Plan 194 (LEP 194). The dispute centred on whether certain provisions of LEP 194, which altered zoning, required the approval of the Governor under section 28(3) of the *Environmental Planning and Assessment Act 1979* (NSW) (EPA Act), and whether LEP 194 provided that a specified regulatory instrument should not apply to particular development.

The primary legal issues before the Court of Appeal were: first, whether the provisions of LEP 194 that effected a change of zoning required the approval of the Governor under section 28(3) of the EPA Act; and second, whether those provisions of LEP 194 provided that a regulatory instrument specified in LEP 194 should not apply to any particular development. The Court was required to interpret the meaning of "provide", "provision", and "tenor" within the context of the EPA Act and LEP 194, considering both the plain text and the purposive approach to statutory interpretation, and potentially referring to extrinsic material such as dictionaries.

The Court of Appeal held that the provisions of LEP 194 that changed zoning did not require the approval of the Governor under section 28(3) of the EPA Act. Their Honours reasoned that section 28(3) applied only to provisions that *exempted* development from the operation of a regulatory instrument, not to provisions that *altered* the zoning itself. The Court further found that LEP 194 did not provide that a regulatory instrument specified within it should not apply to any particular development, as the language used did not amount to such a provision. The appeal was therefore dismissed.

Orders

Orders of the court

(a) Appeal dismissed.

(b) The appellant to pay the first and second respondents’ costs of the appeal up to and including 11 July 2010 and to pay the third respondent’s costs of the appeal from and including 12 July 2010.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd & Ors [2010] NSWCA 214
HEARING DATE(S):	29 July 2010
JUDGMENT DATE:	2 September 2010
JUDGMENT OF:	Tobias JA at 1; McColl JA at 46; Handley AJA at 47
DECISION:	(a) Appeal dismissed. (b) The appellant to pay the first and second respondents’ costs of the appeal up to and including 11 July 2010 and to pay the third respondent’s costs of the appeal from and including 12 July 2010.
CATCHWORDS:	ENVIRONMENT AND PLANNING – development control – planning instruments – local environmental plan – Ku-ring-gai LEP 194 – interpretation – whether approval of Governor required under s 28(3) of EPA Act to provisions of LEP 194 that effected change of zoning – whether provisions of LEP 194 provide that regulatory instrument specified in LEP 194 shall not apply to any particular development STATUTORY INTERPRETATION – extrinsic material – dictionaries – definition of “provide”, “provision” and “tenor” - STATUTORY INTERPRETATION – principles – context reading provision in – plain and unambiguous text giving effect to – purposive approach STATUTORY INTERPRETATION – EPA Act, s 28(2) and (3) – “provide”, “provision”, “regulatory instrument”, “specify”, “tenor”
LEGISLATION CITED:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Income Tax Act 1952 (UK) Interpretation Act 1987 Ku-ring-gai Local Environmental Plan No 74 Ku-ring-gai Local Environmental Plan No 194 Ku-ring-gai Planning Scheme Ordinance Local Government Act 1919 Miscellaneous Acts (Planning) Repeal and Amendment Act 1979
CATEGORY:	Principal judgment
CASES CITED:	Commissioner of Stamps (SA) v Telegraph Investment Co to Ltd [1995] HCA 34; 184 CLR 453 Container Terminals Aust Ltd v Xeras (1991) 23 NSWLR 214 Coshott v Ludwig (1997) NSW ConvR 56,366 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2009] NSWSC 717 Cumerlong Holdings Pty Limited v Dalcross Properties Limited & Anor (No 2) [2009] NSWSC 1157 Inland Revenue Commissioners v Kenmare [1956] 1 Ch. 483 IRC v Jamieson [1964] AC 1445 McMorran v Marrison (Contractors) Ltd [1944] 2 All ER 448 Reid v Allan (1849) 4 Ex 326; 154 ER 1237 Re The Arthur Average Association Ex parte Cory (1875) 44 LJ (NS) 569 Toowoomba Foundry Pty Ltd v The Commonwealth (1945) 71 CLR 545 Walsh v Secretary of State for India [1863] 10 HLC 367; 11 ER 1068
TEXTS CITED:	A Delbridge et al, Macquarie Dictionary, 3rd ed (rev) (2001) Macquarie Dictionary Publishers Bryan A. Garner, Black’s Law Dictionary, 8th ed (2004) West Group Daniel Greenberg, Stroud’s Judicial Dictionary of Words and Phrases, 7th ed (2006), vol 3, Sweet & Maxwell Earl Jowitt and Clifford Walsh, The Dictionary of English Law, 1st ed (1959) Sweet & Maxwell Ltd J Simpson and E Weiner (eds), The Oxford English Dictionary, 2nd ed (1989), vol XII, Clarendon Press
PARTIES:	Cumerlong Holdings Pty Limited Dalcross Properties Pty Limited Dalcross Holdings Pty Limited Australasian Conference Association Pty Limited
FILE NUMBER(S):	CA 2009/298592
COUNSEL:	A: P McEwen SC / N Eastman 1,2&3R: A…