Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd (No 2)
[2014] NSWLEC 71
•12 June 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd (No 2) [2014] NSWLEC 71 Hearing dates: 17 April 2014 Decision date: 12 June 2014 Jurisdiction: Class 4 Before: Craig J Decision: Orders set out at [90]
Catchwords: DEVELOPMENT APPLICATION - s 78A(1) of the Environmental Planning and Assessment Act 1979 (NSW) - public notification development - application made by person under cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) - challenge to the validity of a development application - whether Minister has power of determine application - whether consent for development application is required of State Aboriginal Land Council where consent of Local Aboriginal Land Council is not required - absence of landowner's consent - when landowner's consent must be given - cl 49(3A) of the Environmental Planning and Assessment Regulation 2000 (NSW)
INTERPRETATION - whether cl 49(3A) is displaced when the provisions of cl 49(2) are engaged - whether need for consent of the Crown as "owner" removed by cl 49(2) - whether provisions of cl 49(3) and 49(4) irrelevant to the construction of cl 49(3A)Legislation Cited: Aboriginal Land Rights Amendment Act 2009 (NSW)
Aboriginal Land Rights Act 1983 (NSW)
Aboriginal Land Rights Amendment Bill 2009
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Regulation 2000 (NSW)
Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 (NSW)
Interpretation Act 1987 (NSW)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Local Government Act 1993 (NSW)
State Environmental Planning Policy (State and Regional Development) 2011 (NSW)Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Attorney-General (Cth) v Oates [1999] HCA 35; 198 CLR 162
Australian Postal Commission v Melbourne City Council [2005] VSCA 295; 14 VR 678
Botany Bay City Council v Remath Investments (No 6) Pty Ltd [2000] NSWCA 364; 50 NSWLR 312
Carr v Western Australia [2007] HCA 47; 232 CLR 138
Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Currey v Sutherland Shire Council [2003] NSWCA 300; 129 LGERA 223
Helman v Byron Shire Council (1995) 87 LGERA 349
Hillig v Darkinjung Pty Ltd [2008] NSWCA 75
Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146; 197 LGERA 238
Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113
King v Jones [1972] HCA 44; 128 CLR 221
McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252Category: Principal judgment Parties: Darkinjung Local Aboriginal Land Council (Applicant)
Wyong Coal Pty Ltd (First respondent)
Minister for Planning and Infrastructure (Second respondent)
Planning Assessment Commission NSW (Third respondent)
New South Wales Aboriginal Land Council (Fourth respondent)Representation: J Kirk SC with P D Herzfeld (Applicant)
S Free with Z Heger (First respondent)
A Shearer (Second respondent)
Submitting appearance (Third respondent)
G Kennett SC (Fourth respondent)
Chalk & Fitzgerald (Applicant)
Ashurst (First respondent)
New South Wales Planning and Infrastructure (Second respondent)
Submitting appearance (Third respondent)
New South Wales Aboriginal Land Council (Fourth respondent)
File Number(s): 40189 of 2014
Judgment
Wyong Coal Pty Limited (the First Respondent) is the entity incorporated to carry out a mining joint venture known as Wyong Areas Coal Joint Venture (WACJV). Its purpose is to develop a new underground coalmine near Wyong in a project known as the "Wallarah 2 Coal Project" (the Project).
On 18 October 2012 WACJV made application for development consent under Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) to enable it to implement the Project. Part of the land over which the Project is proposed to be carried out is land owned by Darkinjung Local Aboriginal Land Council (Darkinjung), the Applicant. While that land was identified in the development application as land to which the application related, Darkinjung, as landowner, did not give its consent to the making of the application.
WACJV's development application was made pursuant to s 78A(1) of the EPA Act. The persons able to make a development application pursuant to that section are identified in cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) (the Regulation).
By its summons filed on 22 March 2014, Darkinjung challenges the validity of the development application or, if valid, as an application, the power of the Minister (the Second Respondent) to determine the application in the absence of consent by the New South Wales Aboriginal Land Council (the State Land Council), the Fourth Respondent, to the making of the application. The determination of these challenges turns wholly upon the proper construction of cl 49 of the Regulation.
Background
Those facts that provide a context to the dispute are not in contest. The Project for which WACJV seeks consent is a major mining proposal, the capital investment value of which is said to be in excess of $805,000,000. So far as is presently relevant, the Project proposes the construction and operation of a railway line, with associated infrastructure, over land owned by Darkinjung. That land, being lot 195 in DP 1032847, was transferred to Darkinjung in 2002 following a land claim made under s 36 of the Aboriginal Land Rights Act 1983 (NSW).
The application for development consent made by WACJV was for "State significant development", identified as such in Sch 1 to State Environmental Planning Policy (State and Regional Development) 2011 (NSW) (the State Policy). Section 89D of the EPA Act provides that the Minister is the consent authority for development of that kind. By an instrument of delegation dated 14 September 2011 and made pursuant to s 23 of the EPA Act, the Minister delegated his functions under the EPA Act relating to the determination of applications, including his power under s 89E to determine applications for State significant development, to the Planning Assessment Commission (the PAC), a body constituted under s 23B of the EPA Act.
The PAC has not yet determined WACJV's application for consent to the Project. However, the requisite procedures for processing an application for consent to carry out State significant development preparatory to determination have been embarked upon by the Department of Planning & Infrastructure, including a request by the Minister that the PAC review the Project.
The PAC has been joined as the Third Respondent in the proceedings. It has filed an appearance submitting to such orders as the Court might make other than an order for costs.
At the time of making the application for consent to the Project, the State Land Council had not given its consent to the making of that application. On 11 March 2014, the State Land Council resolved to refuse to give that consent and notified the Minister and all other parties of that fact. That decision of the State land Council has not since changed.
Recent correspondence that is in evidence reveals a contest between the two Aboriginal Land Councils on the one part and the Minister and WACJV on the other as to whether the consent of the State Land Council is required in order to render valid the development application and permit its determination. WACJV has stated that it intends to pursue a determination of its development application without having obtained the consent of the State Land Council (Ex B, p 103). There is thus a justiciable lis for determination.
Statutory controls on the making of a development application
Section 78A(1) provides for a person to make an application to a consent authority for consent to carry out development "subject to the regulations". Subsection (9) of that section provides:
"(9) The regulations may specify other things that are required to be submitted with a development application."
Clause 49 of the Regulation is critical to the determination of the present proceedings and should therefore be quoted in full. The clause provides:
"49 Persons who can make development applications
(cf clause 46 of EP&A Regulation 1994)
(1) A development application may be made:
(a) by the owner of the land to which the development application relates, or
(b) by any other person, with the consent in writing of the owner of that land.
(2) Subclause (1)(b) does not require the consent in writing of the owner of the land for a development application made by a public authority or for a development application for public notification development if the applicant instead gives notice of the application:
(a) by written notice to the owner of the land before the application is made, or
(b) by advertisement published in a newspaper circulating in the area in which the development is to be carried out no later than 14 days after the application is made.
(3) Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown.
(3A) Despite subclause (1), a development application made in respect of land owned by a Local Aboriginal Land Council may be made by a person referred to in that subclause only with the consent of the New South Wales Aboriginal Land Council.
(4) Subclause (3) does not require the consent of the Crown if the development application is for State significant development made by a public authority or public notification development.
(5) In this clause:
public authority includes an irrigation corporation within the meaning of the Water Management Act 2000 that the Minister administering that Act has, by order in writing, declared to have the status of a public authority for the purposes of this clause in relation to development of a kind specified in the order.
public notification development means:
(i) State significant development set out in clause 5 (Mining) or 6 (Petroleum (oil and gas)) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011 but it does not include development to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974, or
(ii) State significant development on land with multiple owners designated by the Director-General for the purposes of this clause by notice in writing to the applicant for the State significant development."
The Project for which WACJV seeks consent is development of a kind set out in cl 5 of Sch 1 to the State Policy. As such, it is "public notification development" within the meaning of cl 49.
Clause 50 of the Regulation contains provisions as to how a development application is to be made. Relevantly, cl 50(1)(a) provides that a development application "must contain" information and be accompanied by documents that are specified in Pt 1 of Sch 1 to the Regulation. Clause 1(1)(i) of Pt 1 in that Schedule provides that information to be included in a development application must contain:
"(i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner's consent is required by this Regulation".
As I have recorded, the consent of Darkinjung to the making of the development application is not contained in, nor does it accompany, the development application. It is not contended by any party to these proceedings that Darkinjung's consent as owner is required to that application.
As it is common ground among the parties that the development for which consent is sought is "public notification development" within the meaning of cl 49(2) of the Regulation, both WACJV and the Minister contend that the consent of the State Land Council under cl 49(3A) is not required. For that reason, WACJV has stated its intention to seek a determination of its development application in the absence of that consent. Thus, the issue between the parties may be distilled as being whether cl 49(2) of the Regulation displaces the requirement stated in cl 49(3A) for the consent of the State Land Council to the making of the development application.
General principles
All parties accept that the principles relating to the interpretation of statutes are to be applied to the interpretation of the Regulation (Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 398). Those principles are usefully summarised in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 where at [39] the plurality said:
"'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself."
As the Hight Court has also stated, consideration of the context includes the purpose of the provision in question. However, the purpose of a statute is one that "resides in its text and structure" (Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25]).
Thus, it is necessary to consider, in turn, text, context and purpose, with text at the forefront.
Text
Clause 49(1) is exhaustive in identifying who may make a development application. Such an application may be made by the owner of the land to which the development application relates (subclause (1)(a)) or it may be made by "any other person" with the consent of the land owner (subclause (1)(b)).
By its terms, cl 49(2) lifts the qualification expressed in subclause (1)(b) requiring the consent of the landowner, but only where the application falls into one of two categories nominated in subclause (2) and where the applicant complies with certain notice requirements. Subclause (2) does not, in terms, remove or qualify the requirement for consent to a development application by a different person where that requirement is imposed by any other statutory or regulatory provision, including another provision of cl 49 itself. The subclause operates only to qualify the requirement imposed by cl 49(1)(b).
The text of cl 49(3A) renders its operation clear. It is expressed to apply "despite" what cl 49(1) provides. That is, the provisions of subclause (3A) have effect notwithstanding the provisions of subclause (1) and the former prevails over the latter to the extent of inconsistency (Attorney-General (Cth) v Oates [1999] HCA 35; 198 CLR 162 at [33]; Australian Postal Commission v Melbourne City Council [2005] VSCA 295; 14 VR 678 at [14]).
Clause 49(3A) applies to both categories of applicant identified in cl 49(1). On the plain reading of the text, it requires that where a development application is made in respect of land owned by a Local Aboriginal Land Council, whether by that Land Council itself or by another person who has the consent of the Land Council, the consent of the State Land Council is also required to that development application. Given that the subclause is expressed to operate "despite" subclause (1), subclause (3A) does not discriminate between the two categories of applicant for development consent identified in subclause (1). Reference in subclause (3A) to "a person referred to in" subclause (1) makes that clear, that is, the subclause comprehends either the land owner or the person making the application with the consent of the owner.
The subject of subclause (3A) is land owned by a Local Aboriginal Land Council to which a development application relates. Once land the subject of a development application is identified as being so owned, the qualifying provisions of the subclause apply so as to impose an additional requirement for consent to the making of that application.
Identifying the subject of cl 49(3A) in this manner has a consequence for the operation of cl 49(2). While the latter subclause operates to qualify the requirement otherwise imposed by cl 49(1)(b), if the development is of a kind identified in subclause (2), it does not, in terms, address a development application made in respect of land owned by a Local Aboriginal Land Council. The provisions of subclause (2) are predicated upon the identity of a particular applicant for development consent ("a public authority") or upon the nature of the development for which application is made ("public notification development"). Those provisions are not directed to the identity of the landowner to whose land the development application relates.
Thus, the capacity of WACJV to make its application for "public notification development" without the consent of Darkinjung is a consequence only of the fact that the latter owns land to which the development application relates. Its capacity so to do by application of cl 49(2) is unrelated to the special identity of Darkinjung as a Local Aboriginal Land Council.
Analysing the text of cl 49(2) in the manner that I have indicated, demonstrates that it is directed to a subject matter that differs from the subject matter of cl 49(3A). They are each directed to different aspects of the making of a development application. As a consequence, there is no apparent reason to read the provisions of cl 49(3A) as if they have no work to do when, in a case such as the present, a development application is able to be made because the provisions of cl 49(2) lift the qualifying provision otherwise imposed by cl 49(1)(b).
In short, the text of cl 49(3A) does not suggest that its provisions are displaced when the provisions of cl 49(2) are engaged in respect of a particular development application. As expressed, they are not inconsistent provisions and can be read so that each can operate in respect of the same development application.
WACJV and the Minister contend that, properly construed, cl 49(3A) does not require the consent of the State Land Council where the consent of a Local Aboriginal Land Council is not required because the provisions of cl 49(2) are engaged. In so contending, they emphasise both the context and purpose of cl 49(3A). They are two aspects of statutory construction to which I will later return.
Confining consideration to text, WACJV contends that there is a "superficial inconsistency" between cl 49(2) and cl 49(3A). While, in the case of an application made by a person who is not the owner of land to which the application relates would require the consent of that owner under cl 49(1)(b), the requirement for that consent is removed in the case of applications to which cl 49(2) applies. The "superficial inconsistency" is then said to arise because cl 49(3A) "read literally and out of context" could require the consent of the State Land Council, regardless of the type of development sought, where the land in respect of which the application was made is owned by a Local Aboriginal Land Council.
The inconsistency is then said to be displaced by reading cl 49(1)(b) and cl 49(2) together so that the two provisions operate as a single unit. So construed, those provisions identify the nature of the permission that is conferred upon a person to make a development application when that person is not the owner of the land to which the application relates.
It is common ground that by operation of cl 49(2), the consent of Darkinjung is not required in the present case. WACJV then submits that the opening phrase of cl 49(3A) "[d]espite subclause (1)" acknowledges the possibility of conflict between subclause (1) and subclause (3A). Properly construed, subclause (1) is conferring a permission: subclause (3A) is qualifying that permission by requiring the consent of the State Land Council to either class of applicant identified in subclause (1) where the land in question is owned by a Local Aboriginal Land Council. As the possibility of "conflict" identified by the opening words of subclause (3A) is directed to subclause (1) only, the provisions of the former do not impinge upon the position that pertains when the need for consent under subclause (1)(b) is removed by subclause (2).
In summary, both WACJV and the Minister submit that cl 49(3A) operates to require the consent of the State Land Council to a development application only where the consent of a Local Aboriginal Land Council, as land owner, is required under cl 49. Where the latter requirement is removed by operation of subclause (2), cl 49(3A) has no work to do. They further submit that had the construction of cll 49(1), 49(2) and 49(3A) required that the consent of the State Land Council be provided even where the provisions of cl 49(2) were engaged in respect of the development application in question, cl 49(3A) would have opened with the words "[d]espite subclauses (1) and (2)". Not only would such a construction involve an impermissible reading of words into subclause (3A), the absence of reference to subclause (2) in subclause (3A) favours the interpretation for which they contend.
I do not accept those submissions, essentially for the reasons advanced by Darkinjung and the State Land Council. The text of cl 49(3A) is not expressed to apply only where cl 49(1)(b) applies to the development application in question. Nor do the provisions of cll 49(1), 49(2) and 49(3A), read sequentially, have that consequence.
By reference to the text, I do not discern the inconsistency to which WACJV referred. Clause 49(2) is to be read as qualifying the requirement for land owner's consent which would otherwise be required by cl 49(1)(b). In the circumstance that cl 49(2) is engaged, it does no more than require that cl 49(1) be read in that qualified manner. Clause 49(1) remains exhaustive in identifying the "person" who may make a development application. Clause 49(3A) operates "[d]espite subclause (1)", as the latter subclause operates to identify the permitted applicants for development consent. So understood, there was no necessity to include reference to cl 49(2) in the opening phrase of cl 49(3A).
Focussing only upon text, the construction advanced by Darkinjung and the State Land Council is to be preferred. Clause 49(3A) should be construed as imposing a requirement that consent to the development application be obtained from the State Land Council, whichever "person" qualifies as an applicant for development consent under cl 49(1).
Having so concluded, it is necessary to determine whether the context in which these provisions are found requires a different conclusion as to their proper construction. It is to that question that I now turn.
Context
Consideration of context requires that account be taken of the legislative provisions surrounding the provision being construed as well as the provisions of the enactment as a whole (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] - [71]). Relevantly, that requires consideration of cl 49 as a whole as well as reference to other provisions of the Regulation on the basis that an endeavour should be made to read those provisions as giving effect to "harmonious goals" (Project Blue Sky at [70]). Where, as here, relevant provisions of the Regulation have been introduced at different times, reference may also be made to the circumstances in which those provisions were enacted. Such an approach will assist in determining whether the textual construction that I have thus far given to cl 49 should yield to a different construction by reason of context.
The provisions of cl 49
Both Darkinjung and the State Land Council submit that the provisions of cl 49(3) and cl 49(4) provide a context that supports their interpretation of cl 49(3A). Subclauses (3) and (4) of cl 49 are directed to a development application made by a lessee of Crown land. The subclause commences in the same terms as subclause (3A) namely "[d]espite subclause (1)". The provisions of subclause (1) are identified in subclause (3) because of the definition of "owner" in the EPA Act.
By s 4 of the EPA Act, the term "owner" is defined in s 4(1) of the EPA Act to have the same meaning as the term has in the Local Government Act 1993 (NSW). By reference to the Dictionary to the latter Act, "owner" is relevantly defined to mean:
"(a) in relation to Crown land, means the Crown and includes:
(i) a lessee of the land from the Crown, and
(ii) a person to whom the Crown has lawfully contracted to sell the land but in respect of which the purchase price or other consideration for the sale has not been received by the Crown ...".
Darkinjung submits that having regard to the similarity of expression between cl 49(3) and cl 49(3A), both provisions should be interpreted as operating in a similar manner. By so doing, cl 49(3) requires the consent of the Crown where application is made for development consent by a lessee of Crown land. As the definition of "owner" identifies both the lessee of Crown land and the Crown as owners of the land, an application would fall within cl 49(1)(a) only if both lessee and the Crown joined in the application. If the application is made only by the lessee, cl 49(3) operates to require the consent of the Crown to the development application which would, in that circumstance, be an application made under cl 49(1)(b).
Relevantly, if cl 49(2) has the effect for which WACJV and the Minister contend, cl 49(4) would have been redundant. On their argument, the need for the consent of the Crown was removed by subclause (2) in the case of an application for the development of the kind identified in that subclause. However, it would be contrary to principle to construe cl 49 as if subclause (4) was redundant or mere surplusage (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [39]).
Giving cl 49(4) work to do results in its provisions displacing the requirement for the consent of the Crown where the development in question is of a kind identified in the subclause. A development of the latter kind is also included in development of the kind identified in cl 49(2). Clause 49(4) demonstrates that, but for its overriding effect, the provisions of cl 49(2) would not have been effective to displace the provisions of cl 49(3). The absence of a provision, similar to cl 49(4), overriding or displacing the provisions of cl 49(3A) supports the construction given to the latter subclause by Darkinjung.
WACJV contends that the reference to the provisions of cll 49(3) and 49(4) are irrelevant to the proper construction of cl 49(3A). If a lessee of Crown land makes a development application, that lessee does so as the "owner" within the meaning of cl 49(1)(a). In that circumstance, the requirement to obtain consent of the Crown is imposed by cl 49(3). If the development is State significant development made by a public authority or is public notification development, the necessity for the consent of the Crown is displaced by cl 49(4). As a further point of distinction from the provisions of cl 49(3A), reference is also made to the limited nature of development identified in cl 49(4) when compared to that identified in cl 49(2).
I do not accept that the provisions of cll 49(3) and (4) are irrelevant to the construction of cl 49(3A). In my opinion, Darkinjung is correct in submitting that if a development application is made by a lessee of Crown land, that lessee alone is not the "owner" for the purpose of cl 49(1)(a). Having regard to the definition of "owner", such an application would be made under cl 49(1)(b), with the consequence that the consent of the Crown would be required. This requirement is reinforced by the provisions of cl 49(3).
Reference to "owner" in cl 49(1) must be read as a reference to "owners": s 8 Interpretation Act 1987 (NSW). Where a development application is required to be made by an "owner" or with the consent of the "owner", either requirement must be taken to be a reference to all of those persons who qualify as "owners" and not be a reference to one of a number of owners (Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 at 120).
Further, I am not persuaded that the narrower description of development, in respect of which the consent of the Crown is not required by operation of cl 49(4), is a reason to regard the provisions of the subsection as irrelevant when construing cl 49 as a whole. It cannot be doubted that the development identified in cl 49(4) is comprehended by development described in cl 49(2). Had the construction of cl 49(2) been that for which WACJV contends, cl 49(4) in qualifying or displacing the provisions of cl 49(3) as it presently does, would not have required to be framed in its present terms.
In summary, nothing in the provisions of cl 49 read as a whole militates against the construction of cl 49(3A) for which Darkingjung and the State Land Council contend. The absence of a provision displacing the operation of cl 49(3A) of the kind found in cl 49(4), as it relates to cl 49(3), provides contextual support for the construction of cl 49(3A) as earlier outlined.
The provisions of the EPA Regulation as a whole
WACJV submits that the construction of cl 49(3A), as requiring an applicant for development consent relating to land owned by a Local Aboriginal Land Council to also obtain the consent of the State Land Council, is inconsistent with other provisions of the EPA Regulation governing the making of development applications. In particular, reference is made to cl 50 of the Regulation requiring that a development application must contain the information and be accompanied by the documents specified in Pt 1 of Sch 1 to the Regulation. I have earlier referred to the provisions of cl 1(1) of that Schedule, requiring that a development application include evidence that the owner of land consents to the application in terms that I will not repeat. The provisions of cl 1(i) are set out at [14].
The essence of the submission is that cl 1(1) of Sch 1 does not identify the need for evidence of the State Land Council's consent. As a number of other provisions of Pt 1 of Sch 1 require specified evidence and documents, the need for which are also identified by other provisions of the EPA Act or other provisions of the Regulation, the absence of reference to the need for the State Land Council's consent as part of the development application is significant. Given the specificity with which other material necessary to be provided as part of a development application is identified, it would be inconsistent with the scheme of the Regulation to have a "freestanding requirement" for consent under cl 49(3A) that is not identified in Pt 1 of Sch 1. These matters, so it is submitted, confirm that on its proper construction, cl 49(3A) is only an aspect of the requirement to obtain the consent of the owner of land: not a provision requiring the consent of the State Land Council independently of the provisions directed to the requirement for land owner's consent.
As Darkinjung submits, reliance upon the provisions of cl 50 and Pt 1 of Sch 1 to the Regulation appears to be misplaced. No provision within Pt 1 of Sch 1 adverts to the requirement for the consent of the State Land Council in any circumstance. Notwithstanding the absence of any such reference, it cannot be doubted that the consent of the State Land Council is required where a development application is made in respect of land owned by a Local Aboriginal Land Council and the development for which consent is sought does not fall within either category of development identified in cl 49(2). It follows that the absence of reference to the consent of the State Land Council in Pt 1 of Sch 1 provides no insight as to whether that consent is required when development of the kind identified in cl 49(2) is the subject of a development application.
In aid of if its construction of cl 49(3A) of the Regulation, Darkinjung seeks to contrast that provision with the provisions of cl 8F of the Regulation. That clause applies, in terms, to a project that is the subject of the provisions of Pt 3A of the EPA Act. Although that part was repealed upon commencement of the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 (NSW), the provisions of Pt 3A continue to apply to certain projects pursuant to Sch 6A of the EPA Act. Thus, the provisions of the Regulation relating to projects that are the subject of Pt 3A continue to have effect. Moreover, projects that are the subject of the provisions of Pt 3A are similar in kind to development that engages the provisions of the State Policy.
Clause 8F of the Regulation relevantly provides:
"(1) The consent of the owner of land on which a project is to be carried out is required for a project application or modification application unless:
(a) the application is made by a public authority, or
(b) the application relates to a critical infrastructure project, or
(c) the application relates to a mining or petroleum production project, or
(d) the application relates to a linear infrastructure project, or
(e) the application relates to a project on land with multiple owners designated by the Director-General for the purposes of this clause.
(1A) The consent of the New South Wales Aboriginal Land Council is required for a project application or modification application relating to land owned by a Local Aboriginal Land Council if the consent of the Local Aboriginal Land Council is required as owner of the land to the application."
Darkinjung submits that had the formulation of cl 49(3A) been consistent with the formulation expressed in cl 8F(1A), the consequence would have been clear. As the consent of the Local Aboriginal Land Council, as land owner, was not required by operation of cl 49(2), the consent of the State Land Council would not have been required. Had the formulation used in cl 8F(1A) been used in cl 49(3A), the provisions of that subclause would have been displaced by cl 49(2).
However, the formulation used in cl 8F(1A) is clearly different to the manner in which cl 49(3A) is expressed. The difference in language between the two provisions of the same Regulation suggests a difference in meaning (King v Jones [1972] HCA 44; 128 CLR 221 at 266).
The difference in meaning between cl 8F(1A) and cl 49(3A) of the Regulation is, so Darkinjung submits, significant for two reasons. First, because the projects to which each clause relates are similar in kind. That proposition is demonstrated by comparing the provisions of cl 8F(1)(c) and the provisions of cll 5 and 6 of Sch 1 to the State Policy. Each relates to development for mining or petroleum purposes. It would therefore be expected that if similar operations were intended to be the subject of similar provisions, the same words would have been used. As is apparent, this is not, in fact, the case.
Perhaps of greater significance is the fact that both cl 8F(1A) and cl 49(3A) were introduced by way of amendment to the Regulation at the same time and by the same provision of an amending Act (sic), namely Item 2.3 of Sch 2 to the Aboriginal Land Rights Amendment Act 2009 (NSW) (ALR Amendment Act). Paragraphs [1] and [2] of that Item insert the text of both cl 8F(1A) and the text of cl 49(3A) into the Regulation.
This circumstance suggests that the difference between what are closely related provisions of the same Regulation are not the consequence of some drafting oversight or anomaly. Rather, the circumstance would suggest that the differences are intentional. This has the consequence that the consent of the State Land Council is required notwithstanding that cl 49(2) operates to avoid the need for the consent of Darkinjung.
WACJV submits that cl 8F of the Regulation supports the construction for which it contends. It submits that cl 8F(1A) "makes explicit the intention which in cl 49 is implicit" namely that the consent of the State Land Council is only required where the consent of the Local Aboriginal Land Council is also required. The different language used in cl 8F(1A) and cl 49(3A) is said to be explained by the different structure of the existing clauses into which they were inserted.
However, as WACJV acknowledges, at the time at which subclause (3A) was inserted into cl 49, it had the same structure as it now has. Indeed, for my part, I am unable to discern any difference of substance. Clause 49(1)(b) was in identical terms to the provisions of that same paragraph in the subclause as it now is. Subclause (2) of cl 49 displaced the requirement for owners' consent where application for development consent was made by a public authority if, before making the application, a copy of the application was served upon the owner by that public authority. The consequence of the provisions in those terms, so it is submitted, is that there was no need for cl 49(3A) to contain an express qualification that the consent of the State Land Council was not required if the consent of the owner of the land was not required, as that objective had been achieved by cl 49(2).
WACJV further submits that the structure of cl 8F differs from the structure of cl 49. The provisions of cl 8F(1) contain both the requirement for consent of the land owner to a project application and also identify those applications in respect of which the requirement for consent is displaced. In that sense, cl 8F(1) rolls into the one subclause that which is provided for in subclauses (1) and (2) of cl 49. Nonetheless, it is submitted that the qualification expressed in cl 8F(1A) was necessary "because, unlike in cl 49, there was no other separate subclause that served to displace the requirement for land owner's consent."
I am unable to accept that submission. The fact that cl 8F(1) contains both the requirement for land owner's consent and the displacement of that requirement in identified circumstances does not, as I have indicated, reflect any difference of substance between the provisions so expressed and the provisions of cll 49(1) and 49(2). This difference in structure between the two clauses being considered does not, to my mind, meet the submissions of Darkinjung. Clause 8F(1A) does make explicit the position that pertains if the consent of the Local Aboriginal Land Council is required as owner of the land that is the subject of the application. However, to submit that the same position is implicit in cl 49(3A) necessarily involves the attribution of a legislative intent to achieve a similar result when the language used in the two provisions differs so markedly and which were inserted into the same Regulation under the same legislative enactment. This suggests to me that, contrary to the submission made, the intention for which WACJV contends is not implicit in cl 49. Account must be taken of the material difference in language between cl 8F(1A) and cl 49(3A).
Both WACJV and the Minister identify what the former describes as "the peculiarity of position" that pertains if the two subclauses in question, operating as they do in respect of similar kinds of development, are construed as imposing different requirements for development of land owned by a Local Aboriginal Land Council from those applying to other land. That, with respect, is an appropriate observation. However, the fact that such an observation may properly be made does not, in the absence of more, result in the necessity to interpret cl 49(3A) as intending a result brought about expressly by cl 8F(1A). Such an approach would involve an a priori assumption that the operation of the provisions should be the same. So to do, in the absence of clear statutory language sanctioning such a course, would be contrary to principle. As French CJ and Hayne J observed in Certain Lloyd's Underwriters v Cross at [26]:
"A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions [footnote omitted]... as the plurality said in Australian Education Union v Department of Education and Children's Services [footnote omitted]:
'In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.'"
Applying those observations, the "peculiarity of the position" cannot be addressed by imputing the same legislative intent when the two clauses in question are so differently expressed. Whether the explanation for the difference lies in the fact that Pt 3A of the EPA Act and the regulation of those projects accounts for the difference need not be explored. The significance in language used and the circumstances in which the two subclauses came to be inserted into the Regulation is sufficient to require that they be construed differently.
Purpose
All parties accept the statutory injunction expressed in s 33 of the Interpretation Act that a construction of the provisions under consideration that would promote the purpose of those provisions is to be preferred to one that would not. However, determining the purpose of a particular statutory provision when construing its terms is a task to be undertaken with some caution. One reason for that caution emerges from the observations, earlier quoted, of French CJ and Hayne J in Certain Lloyd's Underwriters v Cross at [26].
The general rule of interpretation expressed in s 33 was also subject to observation by Gleeson CJ in Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5]. After referring to the general rule as expressed in both Commonwealth and Western Australian legislation, the Chief Justice said:
"That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem."
All parties acknowledged that the provisions of the ALR Amendment Act which, as I have already indicated, inserted by way of amendment cll 49(3A) and 8F(1A) into the Regulation, were relevant when considering the purpose of the inserted clauses. The long title to the amending Act is expressed to be one to amend the Aboriginal Land Rights Act -
"with respect to land dealings by Aboriginal Land Councils and community development levies; and for other purposes."
As expressed in the Second Reading Speech to the Aboriginal Land Rights Amendment Bill 2009 a purpose of the amending legislation was "facilitating greater opportunities for economic development by Aboriginal communities" throughout the State. While self-determination was identified in the Speech as being the underlying theme of the legislation, the amendments provided for greater oversight of Local Aboriginal Land Councils by the State Land Council.
That oversight resulted from the insertion of a new Division 4 of Part 2 into the Aboriginal Land Rights Act which Part was entitled "Land dealings by Aboriginal Land Councils". Those amendments included a new s 42E(1) which provided that a Local Aboriginal Land Council could not deal with land vested in it except in accordance with an approval given by the State Land Council under s 42G. The expression "deal with land" is defined to include either making a development application or consenting to a development application by another person (ss 40(1)(g) and 40(3)). In short, the new provisions provided for the oversight by the State Land Council of all land dealings by a Local Aboriginal Land Council, including an effective power of veto over any intended actions by the latter.
Provisions of that kind are, as Darkinjung submitted, consistent with the purpose of promoting economic development for Aboriginal people. The power of the State Land Council to grant or withhold consent to a development application relating to land owned by a Local Aboriginal Land Council has the potential to further the economic and general development of Aboriginal communities by overseeing the ability of Local Aboriginal Land Council's to use or develop land vested in them.
Both WACJV and the Minister accept that a purpose of the ALR Amendment Act was to establish a regime for State Land Council oversight of Local Aboriginal Land Council dealings with land. They submit that consistent with the regime established by the amending Act, it is appropriate to construe cl 49(3A) of the Regulation as applying in circumstances where a Local Aboriginal Land Council's consent is required for a development application, as well as the circumstance where the Local Aboriginal Land Council itself is making a development application in respect of its land. While, in those circumstances, cl 49(3A) imposes the governance safeguard of a consent from the State Land Council, it is submitted that the requirement for consent of the latter where the relevant Local Aboriginal Land Council has no role to play is not within the identified purpose or object of the ALR Amendment Act. This, so it is further submitted, has the consequence that cl 49(3A) should be construed so that once the provisions of cl 49(2) are engaged there is no further work for cl 49(3A) to do.
Observing the principles directed to legislative purpose earlier identified, I do not accept that submission as correct. As Darkinjung observes, neither the submission of WACJV nor the submission of the Minister suggests that a construction of cl 49(3A) requiring the consent of the State Land Council, even where the application for development in question engages the provisions of cl 49(2), would frustrate or fail to promote the identified purpose of the Amending Act (cf s 33 Interpretation Act). The effect of the submission advanced by WACJV and the Minister is that the text of cl 49(3A) must be confined so as to achieve a purpose that does not reflect the language of cl 49. Such an approach would appear to contravene the observation of the High Court that "[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention" (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]).
WACJV and the Minister also submit that the construction of cl 49 for which Darkinjung contends would undermine the intended operation of cl 49(2). As I understand the submission, it is made by reference to the perceived purpose of that subclause. For my part, I do not discern any single purpose that would give the subclause the overriding effect which is claimed for it and so to do would, in the circumstances, offend the observation earlier quoted that "no legislation pursued its purposes at all costs".
WACJV and the Minister also submit that if the construction of cl 49(3A) for which Darkinjung intends is correct, it would place land owned by a Local Aboriginal Land Council "in a uniquely privileged category" when identifying the requirements for making a development application relating to such land. Various other epithets were used in the submissions to describe that position. The purport of the submission was to indicate that such a result could not have been intended, with the consequence that a more restrictive reading of cl 49 was required.
Having regard to the provisions both of the Aboriginal Land Rights Act and the ALR Amendment Act, placing land owned by a Local Aboriginal Land Council in a position that distinguishes its development and use from the development and use by another land owner is not, to my mind, extraordinary. Indeed, the provisions of that legislation militate against an inference that the legislature would not have intended to place land so owned in a unique position. This observation can be demonstrated by a number of provisions of the legislation.
(a) The preamble to the Aboriginal Land Rights Act recognises the traditional ownership and occupation of land in this State by Aborigines and that land set aside for Aborigines has been progressively reduced without compensation. As has been frequently observed by the courts, that Act "was enacted to give important rights in Crown land to the representatives of the Aboriginal people" (Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157).
(b) Section 42B inserted by the ALR Amendment Act, places land vested in an Aboriginal Land Council in a privileged position. By operation of that section land that is vested in such a Council cannot be appropriated or resumed except by an Act of Parliament. It is a provision that is expressed to apply "[d]espite anything in any Act". Thus, it overrides the operation of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
(c) Specific provision is made in ss 45 and 46 of the Aboriginal Land Rights Act in relation to the ownership of minerals and mining rights where land is transferred to or acquired by an Aboriginal Land Council. By those sections, an Aboriginal Land Council is placed in a unique position as to the ownership of minerals, the right to control mining for those minerals and the receipt of royalties from mining.
(d) The scheme of the Aboriginal Land Rights Act has been described as being "protective of the property of Local Aboriginal Land Councils" (Hillig v Darkinjung Pty Ltd [2008] NSWCA 75 at [8].
(e) The objects of the State Land Council are stated in s 105 of the Aboriginal Land Rights Act. Those objects extend to the improvement, protection and fostering "the best interests of Aboriginal Persons" within the State. Clearly enough, the objects extend beyond oversight of Local Aboriginal Land Councils.
(f) The State Land Council may make land claims on its own behalf or on behalf of a Local Aboriginal Land Council: s 36(2) of the Aboriginal Land Rights Act. Where a claim is made on behalf of a Local Aboriginal Land Council, the consent of the latter Council is not required for the making of that claim.
These provisions are a demonstration of the particular and in some cases, the unique position in which land transferred to an Aboriginal Land Council is identified in the legislation. It is consistent with that legislation that the State Land Council have a power of veto over development applications made in respect of land owned by a Local Aboriginal Land Council, whether or not the consent of the Local Council is required for that application.
In summary, I find nothing in the purpose of the legislation, properly understood, which would require a construction of cl 49 and in particular cl 49(3A) differing from that which results from a close consideration of the text. For that reason, the construction for which Darkinjung and the State Land Council contends should be sustained.
Consequence of non-compliance with cl 49(3A)
WACJV, but not the Minister, submits that even if cl 49(3A) of the Regulation is to be interpreted in the manner that I have found to be correct, such a finding neither invalidates the development application nor deprives the Minister or the PAC, as his delegate, of the power to determine the development application under s 89E of the EPA Act. It submits that on the proper construction of the EPA Act and the Regulation, coupled with the absence of a "compelling explanation" for the existence of the State Land Council's veto power, the need for the latter's consent is neither required for a valid development application nor is it a precondition to the valid exercise of power to determine that application. Reference is made to the well known passage of the judgments of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority at [91].
In support of its submission, reference is made to the provisions of both s 78A of the EPA Act and cl 50 of the Regulation, being the provisions that are directed to development applications. In particular, the argument earlier outlined directed to the provisions of Pt 1 of Sch 1 to the Regulation is repeated for the purpose of founding the submission that absence of reference to the requirement of the State Land Council's consent suggests that it has no bearing upon the validity of the development application.
It is further submitted that the role that the consent of the State Land Council plays in the scheme of the EPA Act and Regulation "is difficult to understand". It is contrasted with the role of the land owner's consent, designed to protect property rights, or the role played by a document required by the Act or Regulation to accompany a development application in the form of an environmental impact statement or a species impact statement. The latter documents are necessary aids to the determination of an application.
In contrast, the consent required by cl 49(3A), being the consent of a third party, in circumstances where the owner's consent is not required, is said not to bear upon the core aspects of the approval process for State significant development.
I do not accept that submission. For reasons earlier given, I place no significance, relevant to the present submission, upon the fact that the requirement for the consent of the State Land Council is not identified in Pt 1 of Sch 1 to the Regulation. Having regard to the provisions of the Aboriginal Land Rights Act, as amended, and the insertion into cl 49 of subclause (3A) by the amending Act, I would regard the requirement for the consent of the State Land Council to be as significant as the requirement for land owner's consent. It is the overarching role that is given to the State Land Council, when development of land owned by a Local Aboriginal Land Council is in contemplation, that affords such significance. Like the need for the consent of the owner of land in respect of which a development application is made, so also the need for consent of the State Land Council is, to my mind, a core aspect of the approval process of any development, including State significant development.
As I understand the submission of the Minister, he accepts, assuming the construction of cl 49(3A) that I have found to be correct, that the consent of the State Land Council would be required prior to determination of the development application. He recognises that there is a long line of authority both in this Court and in the Court of Appeal determining that the absence of consent of the owner of land at the time at which a development application is lodged does not invalidate the application to the extent that it is not thereafter capable of being determined if, prior to determination, that consent is provided (Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146; 197 LGERA 238 at [46] - [47]; Botany Bay City Council v Remath Investments (No 6) Pty Ltd [2000] NSWCA 364; 50 NSWLR 312 at [5] - [7]). For reasons stated above, the requirement for the consent of the State Land Council is no less significant than that required by the owner of land, with the consequence that the principles identified in these cases are appropriate to be applied in the present circumstances. As Spigelman CJ (Sheller and Foster JJA agreeing) observed in Currey v Sutherland Shire Council [2003] NSWCA 300; 129 LGERA 223 at [35]:
"I see very little, if any, scope in this legislative scheme for the concept of a 'valid' application. Citizens are entitled to apply to authorities for whatever they like. The relevant prohibition in the legislative scheme is found in s 76A, which prohibits development without consent, where an environmental planning instrument provides that development consent may not be carried out except with consent. There is no relevant prohibition, express or implied, which impinges upon the application making process."
These observations have the consequence that the development application lodged by WACJV is defective but not invalid. The defect is of such significance that any determination of it without the defect being cured, that is, by the provision of a consent by the State Land Council, would result in a decision that is invalid (Helman v Byron Shire Council (1995) 87 LGERA 349; McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at [189]).
I accept the position taken by the Minister in this respect to be correct. It is also the position supported by the State Land Council. This position has a consequence for the orders that are appropriate to be made.
Relief
At the conclusion of the hearing, it became apparent that if the construction of cl 49 for which Darkinjung and the State Land Council contended was upheld, the form of order or orders appropriate to be made, other than as to costs, could be agreed among the parties. It was intimated on behalf of the Minister that no injunctive relief was required against him on the basis that he would abide, as a member of the Executive Government, such determination as the Court made.
On that basis and without detracting from the primary position of the Minister as to the construction of cl 49 for which he contended, a form of proposed order was circulated by him to the other parties and to the Court. That proposed order, in the form of a declaration, assumed the construction of cl 49 of the Regulation that I have accepted as being correct. The form of order circulated did not address the circumstance that I upheld the submission by WACJV contending that the absence of consent from the State Land Council did not affect the validity of the development application and that it was thereby able to be determined in the absence of such a consent. Clearly, I have rejected the submission by WACJV to that effect. On that basis I understand the terms of the proposed order to be acceptable to all parties.
As a consequence, I propose to make an order in the terms circulated on behalf of the Minister.
Costs
In the event that I determine the proceedings in the manner proposed, the Minister seeks an opportunity to be heard on costs. In the circumstance that both Darkinjung and the State Land Council have been successful, substantially acting in the same interests and contending for the same result, it is appropriate that I afford the parties the opportunity to address the question of costs.
This can be done, at least in the first instance, by directing that WACJV and the Minister provide short written submissions as to costs to Darkinjung and the State Land Council, with the latter parties given a right of written response. Unless either party requires a hearing, the determination of any order for costs will be made on the basis of those written submissions.
Orders
I therefore make the following orders:
(1) Declare that insofar as the application for development consent made by the First Respondent on or about 18 October 2012 and allocated reference number SD 4974 (the Application) is made in respect of Lot 195 in DP 1032847 (the Land) owned by the Applicant, cl 49 of the Environmental Planning and Assessment Regulation 2000 (NSW) requires the consent of the Fourth Respondent to be given in respect of the Application before any consent can be granted to the Application by the Minister or his delegate pursuant to s 89E of the Environmental Planning and Assessment Act 1979 (NSW) which would include consent to the proposed development in respect of the Land.
(2) Direct that within 10 days each of the First Respondent and the Second Respondent serve upon both the Applicant and the Fourth Respondent a written submission (not exceeding 3 pages) directed to the appropriate order for costs to be made in the proceedings, with a copy of each submission to be provided to my Associate.
(3) Direct that within 10 days after service of the submissions referred to in Order 2, each of the Applicant and the Fourth Respondent serve upon the First Respondent and the Second Respondent their respective responses (not exceeding 3 pages) to each submission, with a copy of each submission to be provided to my Associate.
(4) In the event that any party seeks to be heard on the question of costs, they must notify my Associate and the other parties to that effect within 7 days of receiving the submissions served pursuant to Order 3.
(5) Exhibits may be returned.
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Decision last updated: 16 June 2014
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