Devine Limited v State of Queensland

[2004] QPEC 93

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Devine Limited v. State of Queensland [2004]  QPEC 093

PARTIES:

DEVINE LIMITED
(Applicant)

v

STATE OF QUEENSLAND
(Respondent)

FILE NO/S:

3350 of 2004

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court Brisbane

DELIVERED ON:

22^nd November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3^rd November 2004

JUDGE:

Robin QC, DCJ

ORDER:

Declarations made as sought

CATCHWORDS:

STATUTORY INTERPRETATION – whether Planning and Environment Court has jurisdiction to make declarations sought that s 74(b) of the Vegetation Management Act 1999 exempts clearing of native vegetation from operation of the Act on land zoned special facilities at commencement of the section – s 74(b) located under Part heading: “Transitional provisions” and section heading “Existing development control plans and special facilities zones” – whether s 74(b) should be read down to confer exemption only where the zoning continued in existence and ceased to have effect when new planning scheme replaced zones, and designated the land in the “rural” domain.

COUNSEL:

Mr Lyons QC and Davies for Applicant
Mr Morris QC and Holyoak for Respondent

SOLICITORS:

Deacons for Applicant
C R Lohe Crown Solicitor for Respondent

1. This is an originating application seeking the following declarations:

“1.A declaration that by virtue of section 74 of the Vegetation Management Act 1999, that Act does not apply to the clearing of vegetation on certain land situated at Currumbin Creek Road, Piggabeen Road and Hoffshildt Road, Currumbin in the State of Queensland.  Land that is more particularly described as:

(a)       Lot 247 on RP 854934

(b)       Lot 1 on RP 854934

(c)       Lot 2 on RP 168012

(“the land”).

2.A declaration that the chief executive of the Department of Natural Resources, Mines and Energy, being the chief executive administering the Vegetation Management Act 1999, is not a concurrence agency within the meaning of that term under the Integrated Planning Act 1997 for a development application, in relation to the land, insofar as any application concerns the clearing of native vegetation.”

1. The context in which s 74 appears in the Vegetation Management Act 1999 (VMA) is important.  Part 6 Division 1 is:

“Part 6           Transitional provisions

Division 1        Transitional provisions for Act
  No. 90 of 1999

73Existing development approvals and applications for development approvals under the Planning Act

(1)Subsection (2) applies to a development approval under the Planning Act involving the clearing of vegetation in force immediately before the commencement of this section.

(2)The approval has effect as if this Act had not been enacted.

(3)Subsection (4) applies to a development application under the Planning Act involving the clearing of vegetation made to the assessment manager that—

(a)has not been decided before the commencement of this section; or

(b)has been decided, but is the subject of an appeal under the Planning Act and the appeal has not been decided before the commencement of this section.

(4)The application may be decided as if this Act had not been enacted and, if a development approval is given for the application, the approval has effect as if this Act had not been enacted.

74Existing development control plans and special facilities zones

Nothing in this Act affects the clearing of vegetation—

(a)under a development control plan mentioned in the Planning Act, section 6.1.45A; or

(b)in an area designated, immediately before the commencement of this section, as a special facilities zone, or like zone, under a planning scheme under the Planning Act.”

The “Planning Act” is the Integrated Planning Act 1997 (IPA).  Division 2 (Transitional provisions for Vegetation Management and Other Legislation Amendment Act 2004) follows.  The  relevant commencement date is 15 September 2000. 

1. The relevant land is the subject of a development application (superseded Planning Scheme) made to the relevant local government, the Gold Coast City Council, by the registered proprietor, Co-You Australia Pty Ltd, with the knowledge and consent of the applicant (which agreed to purchase the land on certain terms and conditions on 26 September 2003).  Development permits to authorise development of the land including by the clearing of native vegetation are sought. 

1. Differences have arisen between consultants acting for the applicant and for the registered proprietor and the Department of Natural Resources and Mines as to whether or not s 74 provides an exemption, so far as the VMA is concerned, for clearing native vegetation on the land.

1. When I queried the court’s jurisdiction to make the declarations sought, counsel on both sides submitted there was “no doubt whatsoever” (T p 29-30), s 4.1.21(1) (a), (b) and (c) of the IPA being invoked.  Reliance was placed on Netstar Pty Ltd v. Caloundra City Council [2004] QCA 296. On the approach taken in this court in Cornerstone Properties Ltd v Caloundra City Council & State of Queensland [2004] QPEC 044, in which the State of Queensland disputed jurisdiction (para. [27]), making the first declaration sought might be problematic, although the second would not be. (The Judge in Cornerstone Properties expressed his view upon those matters as to which he held the court lacked declaratory jurisdiction.)  I accept the joint submissions regarding jurisdiction.  Persuasive is the reference to Schedule 8 of the IPA which identifies assessable development.  Table 4 excludes from operational works which might otherwise be included in assessable development “the clearing of vegetation to which VMA does not apply”.  As Mr Lyons QC, for the applicant put it, “one needs to know to apply the IPA whether the Vegetation Management Act does or does not apply.”

1. The VMA provides in s.3:

“3 Purpose of Act
(1) The purpose of this Act is to regulate the clearing of vegetation in a way that—

(a) conserves the following—

(i) remnant endangered regional ecosystems;

(ii) remnant of concern regional ecosystems;

(iii) remnant not of concern regional ecosystems; and

(b) conserves vegetation in declared areas  and

(c) ensures the clearing does not cause land degradation; and

(d) prevents the loss of biodiversity; and

(e) maintains ecological processes; and

(f) manages the environmental effects of the clearing to
     achieve the matters mentioned in paragraphs (a) to (e);  
     and

(g) reduces greenhouse gas emissions.

(2) The purpose is achieved mainly by providing for—

(a) codes for the Planning Act relating to the clearing of
     vegetation that are applicable codes for the assessment  
      of vegetation clearing applications under IDAS; and

(b) the enforcement of vegetation clearing provisions; and

(c) declared areas; and

(d) a framework for decision making that, in achieving this 
          Act’s purpose in relation to subsection (1)(a) to (e),
          applies the precautionary principle that lack of full
          scientific certainty should not be used as a reason for
          postponing a measure to prevent degradation of the
          environment if there are threats of serious or irreversible

environmental damage; and

(e) the phasing out of broadscale clearing of remnant

vegetation by 31 December 2006.”

1. By s.7(1) the VMA applies (with four specific exceptions not presently relevant) to all clearing of “vegetation”, which is defined as a native tree or plant other than special cases (a), (b) and (c).  Section 7(2) is:

“This Act does not prevent a local law from imposing requirements on the clearing of vegetation in its local government area.”

1. The respondent placed affidavit material before the court which establishes that the land contains vegetation, and that the purposes of the VMA could usefully be pursued there. 

1. On the face of things, that is precluded by s 74. At the time of the amalgamation of the Gold Coast City Council and the Albert Shire Council in March 1995, the planning regime controlling the land was the 1995 Albert Shire Council Planning Scheme, which was gazetted the month before. Under it, the land was designated as a Special Facilities Zone, more precisely a “Special Facilities (golf course and associated recreational facilities, accommodation units and dwelling houses (maximum 645), hotel (maximum 150 rooms)) Zone.”

1. The whole system of zoning came to an end from 18 August 2003; on that day the former Planning Scheme was replaced by the 2003 Gold Coast City Planning Scheme, the former Albert Scheme attaining the status of the “superseded Planning Scheme” for the land under the IPA.  The designation of the land as a Special Facilities Zone came to an end with the commencement of the Gold Coast Planning Scheme which includes it in the rural domain.

1. According to the originating application, the applicant’s purpose is to develop the land “in accordance with the Special Facilities designation of the land under the 1995 Albert Shire Council Scheme”;  the IDAS Form 1 Development Application shows the existing use as “Rural, with grazing use”, the proposal as:

“Golf course and residential community – refer to the Gold Coast Golf Resort Currumbin application material including Volumes 1-5, Advanced Concept Plan and the staged reconfiguration plans.” 

1. The respondent characterises the applicant’s contention as being that:

“If a parcel of land was designated as a Special Facilities Zone, or like zone on the day before s.74 commenced – 15 September 2000 – that parcel is forever exempt from the operation of the VMA, regardless of whether or not that zoning continues, and regardless of whether or not the proposed development of the land is consistent with that zoning.”

Its contention is that s 74(b) only operates to exempt land from the operation of the VMA for so long as the land remains designated as a Special Facilities Zone or like zone. It accepts that the opposed contention “has the advantage of according with the strict and literal wording of s 74(b)”, but says the outcome:

“(a)   is manifestly absurd; 
 (b)   plainly does not accord with the legislative intention;
(c) cannot be reconciled with the contents of s.74; and
 (d)   must therefore yield to a purposive construction.”

1. Development of the land now comes within s 3.2.5 of the IPA.  Mr Morris QC (for the respondent) explained the relevance of the IPA section as follows:

“…when someone … seeks to take advantage of a superseded scheme the relevant local authority … has an election.  The Council can say “Go ahead under the old scheme and as long as you satisfy the requirements of the old scheme you don’t have to jump over the hurdles provided in the IPA or under the new scheme … under paragraph (b) – “A development permit is required for the application.”

…

… What’s critical … is that if the Council says, “No, we’re not going to let you go ahead under the old scheme, you have to apply for a development permit,” then the party who is subjected to that situation is entitled to compensation if vested rights are taken away.  So much is perhaps obvious.

However, what our learned friends would say is that whilst all of this applies to every aspect of development approval and planning, apart from vegetation management, it doesn’t apply to vegetation management … even though the council has taken away the old zoning, even though the council is entitled to say, ‘We’re not going to let you proceed under that old zoning, you have to undertake your development under the procedures of the new scheme and the IPA, and if you can’t avail yourself of your vested rights you get compensation’. Even though all of that is contemplated by the IPA, nonetheless, that land will still forever be exempt from the provisions of the Vegetation Management Act.”

1. The foregoing scenario may explain why provisions like s 73 and s 74 might be unnecessary to protect the situation of a person who loses the right to “develop” under certain conditions, although there may be those who consider that compensation is a poor substitute for the opportunity to develop. That s 74(b) may be unnecessary on such an approach does not mean it can be ignored or read down.

1. The respondent’s argument kept returning to the proposition that Parliament could not have intended by s 74(b) to exempt land referred to in it (which includes the land in which the applicant is interested) from the operation of the VMA forever. The intention to be ascribed, it was asserted (for example at p 22), is to “preserve existing rights”. Mr Morris said at p.22 that s 74(b):

“… is a transitional provision which protects existing rights. It doesn’t create new rights. It doesn’t confer rights greater than those already existing. It is simply to preserve the status quo. But if our learned friend’s interpretation is correct, s.74(b) travels miles beyond preserving the right to carry out a development in accordance with the special facilities zoning as in place at the relevant time. It simply exempts that land forever from the operation of the Act.”

1. It seems to me that this approach depends upon characterising s 74(b) as a transitional provision and upon some principle that a provision so characterised ought not to be accorded any inappropriately far-reaching effect. Belby J expressed such a notion in The Corporation of The City of Adelaide v The City of Salisbury [1998] SASC 6914 at [75]-[77]:

“It would be an odd and, I suggest, unintended result if the effect of the 1993 transitional provisions was to preserve earlier consents to land use but to do away with any conditions attached to them at all.

…

… the plaintiff’s interpretation would lead to the conclusion that s24(8) enlarged pre-existing rights rather than preserving accrued rights.  Plainly, that was not intended.

Therefore, if condition (6) was valid, it survived the relevant transitional provisions of the planning legislation.”

1. The respondent’s characterisation of s 74(b) as transitional gains significant support from its position in the VMA. Further, the respondent’s contention that the provision should be construed as if it enacted that:

“Nothing in this Act affects the clearing of vegetation –

…

(b)  in an area designated, immediately before the commencement of this section, as and which continues to be designated as a special facilities zone, or like zone, under a Planning Scheme under the Planning Act.” (italicised words added)

arguably gains support from the section heading: “Existing Development Control Plans and Special Facilities Zones” in which “existing” is capable of referring to zones, as well as to development control plans. On this approach, when one comes to consider how s.74 works as at the relevant date (being 30 April 2004, when the development application was made), one finds that the land is no longer designated as a Special Facilities Zone, with the consequence that s 74(b) has no application and that the VMA controls clearing of vegetation, as defined. The IPA provides the management mechanisms. Had the legislators of the State of Queensland enacted what the State of Queensland now contends they meant, it would have been a perfectly defensible enactment. It fits neatly into the structure of ss 73 and 74 considered together. Section 73(1) and (2) protect existing approvals. Section 73(3) and (4) protect interests of those who have existing development applications as at their commencement. Section 74(a) protects clearing of vegetation pursuant to development control plans mentioned in s 6.1.45A of the IPA (being development control plans made under the Local Government (Planning and Environment) Act 1990). Section 74(b) would protect those in a position to effect clearing of land zoned Special Facilities immediately before commencement of this section but only if that zoning continues. Here, not only have all zonings disappeared, the designation of the land had become, by 30 April 2004, “rural”, which is inconsistent with the former Albert Shire zoning.

1. Nothing in particular was said regarding the significance of the word “existing” in the section heading, but I apprehend reliance was placed on it. 

1. I do not propose to say much about the many authorities relating to statutory interpretation cited by Mr Lyons QC, for the applicant. They tended to urge caution upon courts invited to take the bold course urged by the respondent. One I found helpful (as well as the passage in Gibbs CJ’s judgment in Cooper Brookes infra, at 304-05) is Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212, which concerned a time limitation in the Hague Rules and provisions in the New South Wales Supreme Court Rules directly under the heading “Statutes of Limitation” authorizing the court to permit amendments inter alia “where any relevant period of limitation expires after the date of filing of the statement of claim and after that expiry an application is made”.  Clarke J said at 216-7:

“The proposition that Pt 20, r 4, applies to statutory and not contractual time bars is supported in essence by two considerations.  Firstly, the headnote ‘Statutes of Limitation’ and secondly the undoubted fact that this rule supersedes, to the extent of any inconsistency, the provisions of the Limitation Act 1969, indicates a legislative intention that the force of the Limitation Act be modified to the extent shown in the rules. This indication is strengthened, so it was said, by reference to the headnote.

The first submission, which requires hat the words of the rule be read down so as to limit or modify the apparently unqualified words ‘any relevant period of limitation’, focussed on authorities dealing with the permitted use of headnotes in the construction of statutes.  A good example is Ombudsman v Moroney [1983] 1 NSWLR 317 where Street CJ (with whom Moffitt P agreed) adverted to the right of courts to have regard to headnotes in resolving the interpretation of doubtful or ambiguous sections. But I do not read the Chief Justice as ascribing to headnotes any greater role than that in the construction process. In particular he denied the headnote the power to control the section or rule under consideration. His Honour’s view was that the headnote was of assistance in showing the drift of the section.

I am prepared to accept that it is permissible to have recourse to the headnote for that limited purpose (see also Director of Public Prosecutions v Schildkamp [1971] AC 1) but I caution myself that, as Stephen J said in Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 at 594 it is ‘at most only a quite minor aid, ‘a most unsure guide’’.

In my opinion the first defendants seek to invoke the headnote to control the section.  Reduced to simple terms the submission is that the words ‘any relevant period of limitation’ should be read as though they are followed by ‘imposed by statute’ and this rather dramatic qualification is said to result from the text of the headnote.  It seems to me that the words are clear and unambiguous and the headnote provides no reason for cutting down their effect”.

1. The respondent’s difficulty here is that s 74(b) is so clear about the land it applies to, by way of excluding clearing of vegetation from any effect of the VMA. To take up Mr Morris’ graphic illustration, it applies (and apparently forever) to exempt any land in Queensland enjoying the “magic” zoning immediately before 15 September 2000, with the degree of permanence that used to be associated with splashes of red on the globe identifying parts of the British Empire. He argued there are problems with that concept of going on forever. One (which I think involves ‘taking a different tack), posited a situation where the development ultimately proposed for land was completely different from that contemplated by the Special Facilities zoning (not shown to be the case here). A powerful argument is open that where the developer departs completely from the use which provided the very reason for the Special Facilities zoning, there is no reason at all for continuing the exemption under the VMA which was appropriate solely because of that Special Facilities zoning. The zoning covered a curious “grab bag” of potential uses (examples mentioned at the hearing included wharves, hospitals, railway marshalling yards, eco-tourism resorts, some vegetation-friendly, some not). It is odd to contemplate allowing a developer to preserve the exemption by moving from one kind of “special facility” to another – even odder if the development ultimately proposed would never have come within any reasonable understanding of “special facilities”. Section 74(b) itself leaves room for other terminology; it was suggested that, for Brisbane, the relevant zone was “Particular Development Zone”. The court must not be taken as deciding anything about Brisbane or zones differently described.

1. It can hardly be suggested that the legislature was in some way at risk of being taken by surprise in enacting a provision about special facilities zones. All of them would have come about by zoning arrangements approved by the Governor-in-Council and gazetted. In the end, I am unable to avoid the conclusion that Parliament should be taken as having proceeded quite deliberately, and intending the ordinary meaning of s 74(b) when it passed that provision.

1. There are instances of courts deciding that Parliament did not mean what some enactment in terms says.  A leading statement may be found in the joint judgment of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 320-21:

“The rules, as D.C. Pearce says in Statutory Interpretation, p.14, are no more than rules of common sense, designed to achieve this object.  They are not rules of law.  If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive.  When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.

On the other hand, when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure”, he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred.  But the propriety of departing from the literal interpretation is not confined to situations described by these labels.  It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise.  If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention.  If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.”  (italics added)

1. Assigning a ground, Byrne J said in Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157, at 166 in the course of reasons in which the other judges of the Court of Appeal agreed:

“[37] It seems most unlikely that a statutory regime with those objects and incidents, and which so clearly and fundamentally affects damages claims where there is a substantial causal relationship between features of employment and complaints, was designed to exempt from its operation claims involving a tenuous employment connection. For such an arrangement would function as an incentive to injured staff of wealthy employers to avoid the rigours of the statutory regime by setting up a case that the connection with employment, though sufficient to attract liability, is remote where in fact it is considerable. The Parliament is unlikely to have wished to encourage such a fiction. Perhaps more to the point, an employer sued in such proceedings is in economic peril. Although WorkCover may also insure employers in respect of claims by non-PAYE staff, such additional insurance "must not exceed the cover available under this Act for ... damages", which appears to mean that the extra cover cannot extend to cases where employment is not "the major significant factor ...". So the employer - or where the employer procures cover from another insurer in respect of claims involving insubstantial connection between employment and injury, that insurer - could be expected to defend the case on the different basis that the connection between employment and symptoms is substantially greater than that asserted; and to advance such a case against WorkCover in an attempt to secure indemnity under the compulsory policy. Predictable complications such as those are not easily to be reconciled with the expressed intention of "ensuring reasonable premium levels" and "the protection of employers' interests ...". In short, the consequences which would attend acceptance of the interpretation for which the appellant contends seem so peculiar that it is scarcely to be supposed that Parliament could have intended them.

[38] The notion the Act was intended to extend to all instances in which a PAYE employee seeks damages from an employer for work-related symptoms accords with the Minister's second reading speech, where Parliament was informed:

"By requiring employment to be `the major significant contributing factor' causing the injury, the legislation will exclude those injuries which have only a minimal work-related component. The new definition will require the link between employment and the injury to be stronger. This is intended to ensure that employers are held liable only to the extent that their employment of the worker contributed to the injury, or aggravation or acceleration of a pre-existing non-work related condition."”

1. While it is proper to respect the purposes of the VMA and to be uneasy at the prospect (if indeed it is the prospect) that important native vegetation on the land may be razed while the authorities look on, helpless, the present task for the court is a straightforward one of interpreting s 74(b) in its context, by which I refer to the whole of the VMA, in particular the provisions set out above and those which control clearing to which the VMA does apply. I am unable to give effect to the respondent’s argument. The ordinary grammatical meaning of the provision being examined is intractable. It does not matter that, with hindsight, it appears that something more readily acceptable for the appropriate purpose of preserving existing rights to develop land could have been drafted. That is not how things happened. Indeed, there is nothing particularly wrong with the way in which the VMA works, considered on its own. Relevantly, it does no more than exempt clearing of “vegetation” on particular land (which, in principle, could have been readily identified) to the extent of freeing the developer from controls established by the VMA. Section 7(2) deliberately leaves open a field of operation for local laws. The real problem in the difficult situation that has been revealed may well lie not in the VMA, but in the IPA which, as has been seen, effectively abandons interest in clearing of vegetation where the VMA does not apply. Is the respondent now to mount arguments that relevant parts of the IPA are manifestly absurd, do not accord with the legislative intention, must yield to a purposive construction, etc? It is drawing a long bow to impose a strained construction on the VMA because of perceived difficulties or anomalies in the way the IPA works out.

1. There is surprisingly little writing regarding transitional provisions in legislation.  One exception is Bennion on Statute Law (3^rd).  That one reads at 327:

“Since an Act changes the law, it often has to include what are called transitional provisions.  It cannot be brought fully into force with immediate effect, but must spell out precisely how its substantive parts are modified for pending cases and other transactions already in train.  The Act also has to specify relevant dates.  Usually these transitional provisions are quickly spent.  Thereafter, their dead words cumber the Act, obscuring its substance.

Later on, the Act is likely to be amended by a further Act.  Let us hope this is done by direct textual amendment, and not indirectly.  The original Act can then be reprinted as amended, and endures as one coherent text.  Even if the amendments are textual however, there is still a transitional problem.  It is the same problem as arose with the original Act – of dealing with pending cases (and other transactions already in train) and specifying relevant dates.  It means that further transitional provisions are needed to deal with the amendments made by the new Act.

Each time the original Act is amended, the same thing happens.”

1. There follows an illustration of the complications that can ensue as further amendments are enacted, with accompanying transitional provisions of their own. One is used to transitional provisions being impermanent or transitory, and likely to be themselves repealed in the short term. Reading s 74 by itself, one does not gain the impression that it is intended to have only transitory effect; nothing about the language adopted suggests that. Its location in the Act, bracketed with s 73, may be an indication to the contrary.

1. Provisions may be identified as transitional, and limited in their scope accordingly, although they are not identified as such.  An illustration may be found in Vepa P Sarathi, The Interpretation of Statutes (2^nd) at 27:

“ In M. Pentiah v. Veeramallappa[1], the respondents were elected members of a municipal committee under the Hyderabad Municipal and Town Committees Act, 1951.  The Act was repealed by Section 320 of the Hyderabad District Municipalities Act, 1956, which provided that the committee constituted under the repealed enactment was deemed to have been constituted under the 1956-Act and that the members thereof should hold office till the first meeting of the committee elected under the 1956-Act was called under Section 35 of the Act.  No election was held and the old committee continued to function.  In a petition for the issue of a writ of quo warranto by the appellant, it was contended that the old committee became functus officio on the expiry of three years, the term prescribed under Section 34 of the 1956-Act.  It was held accepting the contention that : One of the established rules of construction is that every clause of a statute should be construed with reference to the context and that the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter[2] ….  The establishment of construction are : (1) If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.  Maxwell on the Iinterpretation of Statutes,  10^th Ed., p.7. (2) Manifest absurdity or futility, palpable injustice or absurd inconvenience or anomaly is to be avoided.  Craies on Statute Law, 5^th  Ed., p 7.  (2) Manifest absurdity or futility, palpable injustice or absurd inconvenience or anomaly is to be avoided.  Craies on Statute Law, 5^th Ed., p.82.  (3) Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter.  In the present instance the legislature, in enacting the law not only assumed but also expected that the Government would issue the requisite notification under Section 17 of the 1956-Act within a reasonable time from the date when the Act came into force.  The scheme of the Act should be judged on that basis; if so judged, the sections disclose an integrated scheme giving Section 320 a transitory character.”

[1][1961] 2 SCR 295 : AIR 1961 SC 1105 : [1963] 1 SCJ 768.

[2]Per Lord Davey in Canada Sugar Refining Co. v. R., (1898) AC 735 : 67 LJPC 126 : 79 LT 146.

1. Another illustration occurs in Bennion at 121:

“There is another type of distinction to be drawn.  A component of one kind, for example a section of an Act, may be used in different ways and thus have different functions.  Thus a section or similar item may be one of the substantive provisions of the Act, or it may be purely concerned with the machinery of bringing the Act into operation.  Difficulty is caused by the fact that under our system provisions of the latter type (known as commencement and transitional provisions) are not clearly differentiated in the arrangement of the Act.
That internal distinctions of this kind may be relevant in interpretation is illustrated by the following dictum of Nourse J in relation to the Development Land Tax Act 1976, s 45(4) and (8):

One thing which is clear about sub-ss (4) and (8) is that the former is a permanent provision and the latter is a transitional one.  On a superficial level I can see the attractions of the argument which appealed to the Special Commissioners.  But I think it would be very dangerous, in trying to get to the effect of the permanent provision, to attach too much weight to the particular wording of the transitional one.  (IRC v Metrolands (Property Finance) Ltd [1981] 1 WLR 637, 649.)”

1. Transitional provisions, typically, are there to ensure that changes in a legislative regime come into operation in an acceptable way.  Often they are there to protect existing rights, which explains statements to the effect that they “should be construed as widely as [their] terms will permit”:  Cooper v Comcare (2002) 118 FCR 157, 161 in [22], which Mr Lyons cited. This is, on the face of it, a different approach from that in the South Australian case relied on by Mr Morris, of confining the operation of provisions identified as transitional to ensure that they do not enhance rights.

1. It appears to me that no statement can confidently be made regarding how provisions identified as transitional should be construed. I do not think that the designation of s 74 here as transitional (which in principle would have pleased Francis Bennion, although be may have thought it belonged more with s.7 application of Act) means that it must be read as if it contained some “sunset” aspect. The problem is that different solutions are open as to what circumstances would lead to s 74’s ceasing to apply to land described in it. Suggestions placed before the court included (a) the land’s ceasing to have the indicated (or any) “zoning” in the strict sense of being allocated to an area that is “zoned”; and (b) abandonment of any proposal contemplated by the particular use specified under the special facilities zoning and the proposing of a different use. Variants were suggested in relation to (b) according to whether the new proposed use might itself have come under “special facilities” or otherwise.

1. Assuming the word “existing” in the section heading in some way supports the notion that some change after the commencement of the section would defeat its operation in respect of particular land, it is again totally unclear precisely what changes would have that effect. The word “existing” is likely to be used in provisions enacted to regulate changes in legislation. Indeed, this appears in s 20(2) of the Acts Interpretation Act 1954:

“The repeal or amendment of an Act does not –

(a)  revive anything not in force or existing at the time the repeal or amendment takes effect …”

1. That provision’s operation depends on identification of what is “existing” at an identified date. The natural meaning of “existing” to the extent that it forms part of s 74 is the same. One is directed to the state of affairs pertaining when the section commences. I am not persuaded that a gloss is appropriate to the effect that for s 74 purposes, something that is existing at its commencement must continue to exist, failing which the statutory exemption is lost. (Compare the use of “existing” in the definition of de facto relationship in s 36 of the Acts Interpretation Act, which does not focus on a date when some legislative change comes into effect.)

1. In principle, there is no reason why “transitional” arrangements, intended and designated as such, should not in some instances (although not in all) have a permanent effect, permanent in the sense that the operation of the provision would not change unless and until there is legislative change. 

1. The declarations sought ought to be made. Declaration 2 follows from Declaration 1.