El Cheikh v Hurstville City Council

[2002] NSWCA 173

Reported Decision: (2002) 121 LGERA 293

New South Wales

Court of Appeal

CITATION:	El Cheikh v Hurstville City Council & 2 Ors [2002] NSWCA 173
FILE NUMBER(S):	CA 40661/01
HEARING DATE(S):	07/06/02
JUDGMENT DATE:	17 June 2002
PARTIES :	Sam El Cheikh (Appellant) v Hurstville City Council (Respondent 1) Minister for Planning (Respondent 2) Director General of the Department of Planning (Respondent 3)
JUDGMENT OF:	Sheller JA at 1; Davies AJA at 5; Ipp AJA at 6

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40201/00
LOWER COURT JUDICIAL OFFICER :	Lloyd J

COUNSEL:	B J Preston SC/ J M Jagot (Appellant) P Rigg (Respondent 1) - submitting appearance (Respondents 2 & 3)
SOLICITORS:	Pike Pike & Fenwick (Appellant) Deacons (Respondent 1) Legal Services Branch, Dept of Planning (Respondents 2 & 3)
CATCHWORDS:	Environmental planning instruments - whether public notice of draft local environmental plan misleading - failure of the notice to state purpose of the plan regarding height restriction - when notices are given of two separate plans - whether second plan which is silent on the restrictions should be considered in the context of first which is not - validity of public notice - Statutes - statutory interpretation - whether instrument made in excess of power - whether invalid provisions in the plan could be servered and the remainder be declared valid - principles. Environmental Planning and Assessment Act 1979 s66, Interpretation Act 1987 (NSW s 32. D
LEGISLATION CITED:	Environmental Planing and Assessment Act 1979 Interpretation Act 1987 (NSW)
CASES CITED:	Leichhardt Municipal Council v Minister for Planning [No 2] (1995) 87 LGERA 78 J B Lenton & Co Pty Limited v Minister for Urban Affairs and Planning (1999) 106 LGERA 150 Litevale Pty Limited v Lismore City Council (1997) 96 LGERA 91 Scurr v Brisbane City Council (1973) 133 CLR 242 Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186 Olsen v City of Camberwell [1926] V.L.R. 58 Dunkley v Evans [1981] 1 WLR 1522 Thames Water Authority v Elmbridge Borough Council [1983] QB 570 Director of Public Prosecutions v Hutchinson [1990] 2 AC 783 Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86 Harrington v Lowe (1996) 190 CLR 311
DECISION:	(1) Appeal upheld (2) The orders of Lloyd J of 7 August 2001 are set aside (3) It be declared that Hurstville Local Environmental Plan 1994 (Amendment No 23) is invalid and has no effect (4) The Council pay the appellant's costs of the appeal and of the proceedings in the Court below.

CA 40661/01
LEC 40201/00

SHELLER JA
DAVIES AJA
IPP AJA

Monday 17 June 2002

SAM EL CHEIKH v HURSTVILLE CITY COUNCIL & 2 ORS

FACTS

The appellant was the owner of land within the Hurstville local government area. The land was subject to the Hurstville Local Environmental Plan 1994 (LEP) and was zoned 3(c) (Business Centre Zone). Under the LEP there was no height control applicable to the appellant’s land. On 12 April 2000 the Council resolved to exhibit a draft amendment to the Hurstville LEP (Amendment 23), which sought to restrict development in small commercial areas to a maximum height of two storeys. The areas affected included the appellant’ land.

Pursuant to section 66 of the Environmental Planning and Assessment Act 1979 the Council was required to exhibit the draft plan publicly and give the public notice of the exhibition. The Council duly complied and gave notice of the exhibition in the local newspaper. In the interim and on the advice of the Council’s strategic planner, the Council sought to rezone certain areas to provide for a uniformity of planning controls in each zone. Rather than finalising the first draft plan which incorporated the height restrictions and then make a new plan for the zoning changes, the Council resolved to proceed with a new draft plan (Second Draft Plan) implementing both sets of changes. Public notification occurred by advertisement, however the notice did not advert to the proposed issue of height restriction. The Minister made the Second Draft Plan on 12 September 2000.

The appellant contended that the notice of public exhibition of the Second Draft Plan was misleading to the extent that the stated purpose of the plan was silent about the changes to the height restriction contained therein. Furthermore the appellant submitted that in the proceedings below, Lloyd J had erred when he considered the Second Draft Plan by having regard to the context of the First Draft Plan, especially after his Honour found that, taken in isolation, the second draft plan was “misleading” and “technically incomplete”. Finally the appellant argued that, even if regard could be had to the context, the Judge had erred in finding that the notice of the first draft plan formed part of the relevant context. The respondent, subject to the question of severance, did not dispute the proposition that the invalidity of the notice under s 66 of the Act would result in the invalidity of Amendment 23. On the issue of severance, the respondent submitted that by virtue of s32(3) of the Interpretation Act 1987 (NSW) the height limit could be severed from the rest of the plan so that the changes to zoning would remain valid.

(1) No reasonable reader of the advertised notice would be warned by the words used in the notice that the Second Draft Plan proposed a change to height restrictions.

(2) Although no explanation is required by s 66 of the Act, once the Council provides an explanation for the draft plan being exhibited, that explanation needs to be accurate and complete. In the case of the Second Draft Plan, it was not. The change involving the height restriction was a material matter and should have been included in a description of the purpose of the Second Draft Plan. Hence the notice, looked at on its own, was misleading. Leichhardt Municipal Council v Minister for Planning [No 2] (1995) 87 LGERA 78.

(3) The notice of the Second Draft Plan made no reference to the earlier notice, nor was the earlier notice incorporated into the later notice. It follows that the earlier notice did not form part of any relevant context in which the notice of the Second Draft Plan is to be construed. On this ground alone, it is not permissible to have regard to the earlier notice.

(4) Persons who read the Second Draft Plan without reading the first notice would have been mislead into believing that the Second Draft Plan did not involve the limitations of building heights. Furthermore persons who had read both notices may have still been misled because the terms of the Second Draft Plan may have given rise to the belief that it was intended to replace the First Draft Plan and, as such, did not involve limiting the height of buildings.

(5) Section 32 (2) of the Interpretation Act 1987(NSW) does not apply where there is a lack of power to make the whole instrument, as in this case, in a consequence of the invalid notice. Where the whole instrument is made in excess of power it is a nullity and severance is not applicable. Consequently. s 32 has no ameliorating effect. Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186.

(6) Even if the instrument was intra vires, it would still not be possible to sever the provisions relating to height restrictions and declare the remainder of the plan to be valid. Olsen v City of Camberwell [1926] V.L.R 58. As the Council resolved to approve the Second Draft Plan because of the desirability of implementing height restrictions coupled with the need to reduce the number of sub zones, it is not possible for the Court to determine whether the Council would have approved the Second Draft Plan without the height restrictions. Accordingly this militates against the severance of Amendment 23.

Orders

(a) The appeal is upheld.

(b) The orders of Lloyd J of 7 August 2001 are set aside.

(c) It be declared that Hurstville Local Environmental Plan 1994 (Amendment No 23) is invalid and has no effect.

(d) The Council pay the appellant’s costs of the appeal and of the proceedings in the Court below.

CA 40661/01
LEC 40201/00

SHELLER JA
DAVIES AJA
IPP AJA

Monday 17 June 2002

SAM EL CHEIKH v HURSTVILLE CITY COUNCIL & 2 ORS

Judgment

1 SHELLER JA: I have had the benefit of reading in draft the reasons for judgment of Ipp AJA with which I respectfully agree. Amendment 23 to the Hurstville Local Environmental Plan 1994 made by the Minister for Urban Affairs and Planning on 12 September 2000 introduced a new cl 15A which applied to land within Zone 3(a) and within Zone 3(c) except land within that zone at the town centres of Riverwood, Beverley Hills, Penshurst, Mortdale, Narwee and Kingsgrove as shown on the map. Sub-clause 15A(2) provided that despite any other provision of the plan, “the Council must not consent to the erection of any building exceeding 2 storeys in height on land to which this clause applies”.

2 The notice of the draft of the plan Amendment 23 published on 1 June 2000 described its purpose without mention of this proposed height restriction. It said no more than that the purpose of the plan was to simplify and consolidate all recent changes and recognise the difference between larger shopping centres and small neighbourhood shops. The Council was bound by s66 of the Environmental Planning and Assessment Act 1979 to give such public notice of the place, dates and times at and during which the draft plan might be inspected by the public. Section 66 did not require the Council to publish any statement about the purpose of the draft plan. However, the Council, legitimately and quite properly, chose to do so. Unfortunately, the notice was, by omission of any reference to the purpose of imposing a height restriction, misleading in a material respect. The situation might have been saved if express reference had been made to the earlier notice published in relation to a different draft plan on 20 April 2000. That earlier notice was not one for inspection of the draft of Amendment 23, about which the Director General reported to the Minister pursuant to s69 and which the Minister made, and in the absence of such a reference was an irrelevant notice. A misleading notice is invalid and, accordingly, is not one which complies with s66 of the Act. Therefore, the Director General could not report to the Minister that s66 had been complied with (see s69(c)).

3 The power of the Minister to make the plan depends upon the Minister being satisfied that the provisions of s66 have been complied with. If they have not, the Minister has no power to make the plan or any part of it. The plan so made is wholly invalid. No principle of severance, statutory or otherwise (compare s32 of the Interpretation Act 1987), can save any part of it. As Pearlman CJ remarked in Darling Casino Limited v Minister for Planing& Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186 at 207 severance involves a question of excessive power and, where one part of an instrument is intra vires and another part is ultra vires, enables the severance of the ultra vires portion and the preservation of the intra vires portion. It has no application where there is a lack of power to make the instrument.

4 The orders should be as Ipp AJA proposes.

5 DAVIES AJA: I agree with the reasons of Ipp AJA.

6 IPP AJA: A local environmental plan may be made by the Minister in accordance with the process required by Pt 3 Div 4 of the Environmental Planning and Assessment Act 1979. The steps in this process include the public exhibition of draft local environmental plans (s 66), the making and consideration of submissions (s 67 and s 68), the furnishing of a report by the Director-General (s 69) and the considering of the report by the Minister (s 70).

7 In proceedings before Lloyd J, the appellant contended that Hurstville Local Environmental Plan 1994 (Amendment 23) was invalid on the ground that the public notice advertising the draft local environmental plan on which Amendment 23 was based was misleading and therefore invalid. His Honour did not accept the appellant’s contention and upheld the validity of the notice and hence the validity of Amendment 23. In this appeal the appellant contended that the learned judge erred in so doing.

8 Before Lloyd J the appellant argued that invalidity of a notice of the public exhibition of a draft local environmental plan (under s 66 of the Act) results automatically in the invalidity of a plan made by the Minister under s 70 (in reliance on the draft plan of which invalid notice was given). The argument, in essence, was that the making of a valid local environmental plan under s 70 is conditional upon valid notice being given of the public exhibition of the relevant draft local environmental plan under s 66(1).

9 The appellant relied for this proposition on Leichhardt Municipal Council vMinister for Planning[No 2] (1995) 87 LGERA 78 where Priestley JA (with whom Sheller JA agreed) concluded that a draft regional environmental plan, which was not in all important respects the product of a Pt 3 Div 3 process, was not a plan which the Minister had power to make under s 51(1) of the Act. It is to be noted that the provisions of Pt 3 Div 3 are not identical with those of Pt 3 Div 4. The reasoning in LeichhardtMunicipal Council v Minister for Planning [No 2] was applied by Cowdroy J in J B Lenton & Co Pty Limited v Minister for Urban Affairs andPlanning (1999) 106 LGERA 150 in restraining the Minister from making a local environmental plan under s 70 unless and until the provisions of Pt 3 Div 4 of the Act were first complied with in respect of the relevant draft local environmental plan.

10 The respondent did not dispute the proposition that, subject to questions of severance, invalidity of the notice under s 66 of the Act resulted in the invalidity of Amendment 23 and the appeal was argued on the assumption that the proposition was correct. In the circumstances, I shall deal with the appeal on the basis of the same assumption, but without expressing any view as to its correctness.

11 Section 66 provides:

“66(1) Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall, after complying with any condition subject to which the certificate was granted and subject to the regulations:
(a) give public notice, in a form and manner determined by the council, of the place at which, the dates on which, and the time during which, the environmental study prepared by the council under section 57 of the land to which the draft local environmental plan applies and the draft local environmental plan may be inspected by the public.”

12 A public notice that is misleading is invalid and not a public notice as required by s 66: Litevale Pty Limited v Lismore City Council (1997) 96 LGERA 91. In that case Rolfe AJA stated (at 101-102):

“Thus s 66 provides for a public notice advising members of the public where and when the proposal and documents, the implementation of some of which may affect their interests, may be inspected. Section 66 does not require any explanation of the proposal or documents and, thus, may be contrasted with the legislative provision considered by the High Court in Scurr v Brisbane City Council (1973) 133 CLR 242; 28 LGRA 50. However, if the notice pursuant to s 66 does attempt an explanation of what is proposed it must be accurate and complete, either particularly or generally. The problem of seeking to give an explanation in a relatively short document is that there is a real possibility that it will be neither accurate nor complete. The inaccuracies are likely to result from the omission of information.
Although no explanation is required by s 66 it is not suggested that if one is given the notice will be invalidated thereby. Problems will arise, however, if the notice, as it must do, directs members of the public to where and when all of the relevant information may be inspected, but by the giving of incomplete or inaccurate information gives rise to the impression that their rights and interests will or may not be affected, so that it is unnecessary for them to accept the notice’s invitation to inspect the relevant information. In those circumstances the obviously beneficial effect of the giving of the public notice would be defeated by the inaccurate or incomplete information in it, which the Act does not require, so that notices under s 66, infected by inaccurate or incomplete information, have been held to be misleading and, hence, invalid. The fact that they comply with the express requirements of the Act does not, in my opinion, save such notices.
Thus, once a Council goes beyond stating the precise and limited requirements of s 66(1)(a) and seeks to give an explanation, which the section does not require, it seems to me that a real question as to the validity of the notice may arise if, on the consideration of what is stated, it appears that on a fair reading of the notice by a member of the public, the notice may not have conveyed that the draft local environmental plan has a wider operation than stated, whether expressly or impliedly, such that if a member of the public had been aware of that operation he or she may have wished to avail himself or herself of the opportunity to consider all the documents exhibited. In this context it is said that the notice may be misleading and, if it is, that it is invalid. ‘Misleading’ is a word of pejorative connotation, but for present purposes it probably means little more than failing fully to advise members of the public, through the public notification of the draft local environmental plan, or by making a limited statement lulling them into a false sense of security.”

13 The appellant was the owner of land within the city of Hurstville. The land was subject to Hurstville Local Environmental Plan (“the Hurstville LEP”) which, at the time of the hearing before Lloyd J, was zoned 3(c) (Business Centre Zone). Under the Hurstville LEP there was no height control applicable to the appellant’s land, other than an indirect limitation by way of a floor space ratio control.

14 On 12 April 2000, the Council resolved to prepare and exhibit a draft amendment to the Hurstville LEP 1994 to restrict development in small commercial centres to a maximum height of two storeys. The areas to be affected included the appellant’s land. A draft plan was prepared as a result of this resolution. This plan was referred to in the proceedings below as “the First Draft Plan”.

15 By s 54(4) of the Act, the Council was obliged to inform the Director-General of its decision to prepare a local environmental plan and this it did by letter dated 14 April 2001. The Council was also required, pursuant to s 66 of the Act and the Regulations, to exhibit the draft plan publicly for 28 days and to give the public notice of that exhibition. It proceeded to put the plan on exhibition at the Council offices from 20 April 2000 and gave notice of the exhibition in a local newspaper. The notice read relevantly as follows:

“EXHIBITION OF DRAFT AMENDMENT TO HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994
Council has resolved to prepare and exhibit a draft Local Environmental Plan for certain commercial and retail land, namely within the 3 (a) Zone (excluding the centres of Riverwood and Beverly Hills) and certain land within the 3 (c) Zone (excluding land located around a railway station at Penshurst, Mortdale, Narwee and Kingsgrove).
The purpose of the draft Plan is to limit the height of buildings to 2 storeys.”

16 The Council duly completed the preliminary steps to gazetting the First Draft Plan as an amendment to the Hurstville LEP.

17 In the meantime the Council had received a report by its strategic planner, Mr L O’Dwyer, dated 26 April 2000. This report called for further amendments to the Hurstville LEP. As Lloyd J put it:

“Mr O’Dwyer recommended the rezoning of certain areas so as to allow for a uniformity of planning controls in each Zone”.

According to Mr Rigg, who appeared for the respondent, this involved a rationalisation of the way in which sub-zones 3(a) and 3(c) applied.

18 The Council adopted Mr O’Dwyer’s recommendations and on 15 May 2000 notified the Director-General that it had resolved to revise the First Draft Plan and stated:

“It is anticipated that Council will not proceed with the [first Draft Plan]. The [second Draft Plan] effectively supersedes the [first Draft Plan] with all relevant considerations incorporated under [the second Draft Plan]”.

19 As Lloyd J pointed out, the Council could have proceeded to finalise the two-storey height restriction by utilising the First Draft Plan and then gone on to make a new draft plan incorporating the zoning changes. Instead, it decided to deal with both proposals in a single plan. It resolved to proceed with a new draft plan (referred to below as “the Second Draft Plan”) implementing both sets of changes. In consequence, it notified, advertised and exhibited the Second Draft Plan.

20 Public notification of the Second Draft Plan occurred by advertisement in the following terms:

“EXHIBITION OF DRAFT AMENDMENT TO HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994
Council is exhibiting a draft Local Environmental Plan for the 3(a) and 3(c) Business Zones.
The purpose of the draft plan is to:
- Simplify and consolidate all recent changes, and
- Recognise the difference between larger shopping centres and small neighbourhood shops.
The plan does not alter any of the recent changes made to the business zones”

21 In response to the exhibition and notification of the First Draft Plan, the Council received three submissions. Two were against and one in favour of the proposed amendment. It received no submissions following the exhibition and notification of the Second Draft Plan.

22 On 27 July 2000 the Council resolved to approve the following recommendation:

“Council not proceed with the Draft Local Environmental Plan to amend Hurstville Local Environmental Plan 1994 with respect to business zones as adopted by the Council for public exhibition at its meeting on 12 April 2000. The Council further resolve to proceed with the Second Draft Plan.”

23 The Second Draft Plan was made by the Minister on 12 September 2000.

24 The appellant contended that the notice of public exhibition of the Second Draft Plan was misleading in that the stated purpose of the Second Draft Plan was silent about the changes to the height restrictions actually contained therein. The purpose, according to the notice, was to simplify and consolidate all recent changes and to recognise the difference between larger shopping centres and small neighbourhood shops. The notice also stated that the Second Draft Plan did not alter any of the recent changes made to the business zone. The appellant contended that the notice was misleading because, in fact, one of the purposes of the Second Draft Plan was to bring about a significant change by limiting the height of buildings in the area mentioned to two storeys.

25 Lloyd J, in dealing with this argument, said that he regarded the First Draft Plan and the Second Draft Plan as two separate plans. Nevertheless, he considered that the earlier notification formed part of the context in which the later notification must be read. His Honour observed that when regard was had to the “context”:

“The Council was entitled to believe that anyone who was concerned about height restrictions had already been afforded an opportunity to examine the plan and make submissions; and that what was now necessary was to give an opportunity to people who might be concerned about the proposed zoning changes to inspect the plan and make submissions on that change”.

His Honour proceeded:

“The public had already availed itself of the opportunity to make submissions on the subject of height restrictions; two submissions were made against, and one in favour of the proposed changes. The s 69 report shows that those submissions were taken into consideration in the decision to make the second plan. Having regard to the proximity in time between the public notification of the two plans – the period for submissions on the first draft had closed exactly two weeks before the second draft was advertised – it is unlikely that the views or circumstances of potential objectors had so altered that it was necessary to elicit fresh submissions upon this change.
In my opinion, members of the public, including objectors, who had seen the first advertisement and the first draft plan when it was exhibited, would not have been led by the second advertisement to believe that the first draft was no longer on foot. It is probably more likely that they would have believed that the changes in the first draft plan were being considered, while an entirely distinct proposal was being notified by means of a second advertisement”.

26 Lloyd J concluded:

“I find that the public notification that took place, which included the notice of 1 June 2000, satisfied both the form and the purpose of s 66. In form it satisfied the technical requirements of the Act. In substance, although the notice of 1 June 2000 contained an explanation which did not itself give a complete picture of the proposed plan, in the circumstances of the case it nevertheless fulfilled the function of relevantly informing the public of the proposed changes and the function of allowing public participation in the making of the plan. In short, I find that the extra material which Council included in that advertisement did not defeat ‘the beneficial effect of the giving of public notice’ ( Litevale at 102) because the public, only a month earlier, had had proper notice of those changes which that advertisement neglected to mention, and an opportunity to make submission thereon. There can be no suggestion that any member of the public was misled”.

27 Mr Preston SC, senior counsel for the appellant, drew attention to the fact that Lloyd J had found that, “taken in isolation”, the Second Draft Plan was misleading, that it was “technically incomplete” and that it did not “give a complete picture of the proposed plan”. He submitted that, firstly, Lloyd J was wrong to have regard to the “context” (it was said that he should have considered the notice of the Second Draft Plan alone) and, secondly, even if regard could be had to the context, Lloyd J had erred in finding that the notice of the First Draft Plan formed part of the relevant context.

28 Mr Rigg supported the reasoning of Lloyd J but first submitted, in effect, that his Honour was wrong in finding that the notice of the Second Draft Plan, when looked at without reference to the notice of the First Draft Plan, was misleading.

29 Mr Rigg argued that the words in the later (second) notice, referring to the recognition of the difference between larger shopping centres and small neighbourhood shops, would have alerted any reasonable reader to the fact that the Second Draft Plan incorporated limitations to the height of certain buildings. He submitted, in effect, that such limitations would be an inevitable consequence of the “difference” to which the notice referred.

30 I do not accept Mr Rigg’s submissions. Inherent in his argument is that it was implicit in the stated purpose of recognising the difference between larger shopping centres and small neighbourhood shops that the act of recognition involved making planning changes appropriate to that “difference” and that one such change was the new height limitation. Firstly, when looked at alone, the implication contended for does not readily arise from the ordinary meaning of the words used. The word “recognises” implies the acknowledgment of existing differences and not the implementation of changes. Secondly, the statements in the notice that one of the purposes was to “simplify and consolidate all recent changes” and that “the Plan does not alter any of the recent changes made to the Business Zones” reinforce the impression conveyed by the word, “recognises”. Thirdly, in my view, no reasonable reader would be warned by the words used that the draft plan proposed a change to the height restrictions.

31 The Council was not required by s 66 to provide any information in the notice about the purpose of the draft plan being exhibited. However, once having provided an explanation, that explanation needed to be accurate and complete. It was not. The change involving height restrictions was a material matter: Leichhardt Municipal Council vMinister for Planning [No 2] (at 88 to 89). It should have been part of any description of the purpose of the Second Draft Plan. It was not. The notice, looked at on its own, was misleading. This was the view of Lloyd J and I think his Honour was entirely correct in this respect.

32 I turn now to the opinion expressed by Lloyd J that the notice should not be looked at on its own, but, rather, in context, and that the context included the notice for the first Draft Plan. It was on this basis that his Honour said that, “because the public, only a month earlier, had had proper notice of those changes,” there could be no suggestion that any member of the public was misled.

33 Had the notice of the Second Draft Plan referred expressly to the earlier notice, it would have been readily arguable that regard should be had to the earlier notice in determining whether the notice of the Second Draft Plan was misleading. But the notice of the Second Draft Plan neither expressly nor impliedly made any reference to the earlier notice. There is no basis on which it could be said that the earlier notice was incorporated by reference into the later notice. In my opinion, the earlier notice did not form part of any relevant context in which the notice of the Second Draft Plan is to be construed. On this ground alone, in my view, it is not permissible to have regard to the earlier notice. The notice of the Second Draft Plan must be regarded as misleading in a material respect.

34 There was some discussion during the course of argument as to whether a person who read both notices might be misled by the later notice. In my view, this question must be answered in the affirmative. Some five weeks elapsed between the two notices. Both the First and Second Draft Plans were for land within the 3(a) and 3(c) zones; they concerned the same subject-matter. It is not beyond the bounds of reasonable possibility that, for that reason, a person who read both notices might have believed from the terms of the notice of the Second Draft Plan that the Second Draft Plan was intended to replace the First Draft Plan and therefore did not involve limiting the height of buildings.

35 In my opinion, it is likely that persons who read only the notice of the Second Draft Plan (and did not read the first notice) would have been misled. Such persons, on reading the second notice, would probably have believed that the Second Draft Plan did not involve the limitation of building heights. It is conceivable that, between the dates on which the two notices were published, some persons first became interested in land affected thereby. Such persons might not have taken the trouble to read the first notice but, later, might have read the notice of the Second Draft Plan. As I have stated, there is a probability that they would have been misled by the latter notice.

36 The respondent submitted that, should it be held that the notice of the Second Draft Plan was invalid because it was misleading, the whole of Amendment 23 should not be declared to be invalid. The respondent submitted:

“[B]y virtue of s 32(3) of the Interpretation Act 1987 (NSW), only the two-storey height limit, which is quite severable, would be ineffective, and the rest of the Plan, mainly the changes to nominal zoning, would remain valid”.

37 Section 32 of the Interpretation Act 1987 (NSW) provides:

“(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.
(2) If any provision of an instrument, or the application of any such provision to any person, subject–matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:
(a) It shall be a valid provision to the extent to which it is not in excess of that power, and
(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.
(3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made”.

38 Section 32(2) applies to any provision of an instrument construed as being in excess of power. In other words, it applies to an instrument part of which is within power and part which is in excess of power. It does not, in my view, apply where there is a lack of power to make the whole instrument. Where the whole instrument is made in excess of power it is a nullity and s 32(2) has no ameliorating effect. This was the conclusion to which Pearlman CJ came in Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186 (at 207) and I agree with her Honour in this regard.

39 In any event, the proposition that the provisions relating to height restrictions should be severed from the plan made by the Minister under s 70 (and the remainder of the plan declared to be valid) falls foul of the principle laid down in Olsen v City of Camberwell [1926] V.L.R. 58 (at 68) and followed in several cases since then, see, for example, Dunkley v Evans [1981] 1 WLR 1522, ThamesWater Authority v ElmbridgeBorough Council [1983] QB 570, Director of Public Prosecutions vHutchinson [1990] 2 AC 783 and Sloane v McDonald Industries (Sales)Pty Ltd (1989) 17 NSWLR 86. It was approved by the High Court in Harrington v Lowe (1996) 190 CLR 311.

40 The principle in question (as expressed by Cussen J at 68) is as follows:

“If the enactment, with the invalid portion omitted, is so radically or substantially different a law as to the subject-matter dealt with by what remains from what it would be with the omitted portions forming part of it as to warrant a belief that the legislative body intended as a whole only, or in other words, to warrant a belief that if all could not be carried into effect the legislative body would not have enacted the remainder independently, then the whole must fail”.

41 The Council’s strategic planner, Mr O’Dwyer, reported on 26 April 2000 that recent amendments to the local environmental plan, coupled with the height restrictions amendment proposed in the First Draft Plan, would create an overly complex planning regime in the Hurstville local government area. This led Mr O’Dwyer to recommend the changes reflected in the Second Draft Plan. The Council adopted Mr O’Dwyer’s recommendations and decided to deal with the proposal for height restrictions and the proposals for zoning changes in a single plan, namely the Second Draft Plan. It seems therefore that the Council resolved to approve the Second Draft Plan because of the desirability of implementing the height restrictions “coupled with” the need to reduce the number of sub-zones. That being so, it is not possible for this Court to determine whether the Council would have approved the Second Draft Plan without the height restrictions.

42 In the circumstances, I would not accept the submission that there should be severance in regard to Amendment 23.

43 In the circumstances, I propose the following orders:

(a) The appeal is upheld.

(b) The orders of Lloyd J of 7 August 2001 are set aside.

(c) It be declared that Hurstville Local Environmental Plan 1994 (Amendment No 23) is invalid and has no effect.

(d) The Council pay the appellant’s costs of the appeal and of the proceedings in the Court below.

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