Hawkesbury City Council v Sammut

[2000] NSWLEC 270

Land and Environment Court

of New South Wales

CITATION:

Hawkesbury City Council v Sammut [2000] NSWLEC 270

PARTIES:

APPLICANT
Hawkesbury City Council

RESPONDENT
Sammut

FILE NUMBER(S):

40202 of 1999

CORAM:

Cowdroy J

KEY ISSUES:

Development :- planning instruments - interpretation - whether amendment to SEEP is to be applied with retrospective effect - intention of Minister determined from text - amendment to be applied retrospectively

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Interpretation Act 1987

CASES CITED:

Egan & Anor v Hawkesbury City Council & Anor (1993) 79 LGERA 321 ;
Elf Farm Supplies Pty Limited v Hawkesbury City Council & Anor (1999) NSWLEC 261unreported;
Moss and Phillips v Donohoe (1915) 20 CLR 580

DATES OF HEARING:

25/9/00

EX TEMPORE
JUDGMENT DATE :

09/25/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport (Barrister)

SOLICITORS
Abbott Tout

RESPONDENT
Mr P Tomasetti (Barrister)

SOLICITORS
Storey & Gough

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40202 of 1999
CORAM: Cowdroy J
DECISION DATE: 25/9/00

Hawkesbury City Council

Applicant

v

Daniel Sammut

Respondent

JUDGMENT

1. In these proceedings, a question of law has arisen, namely whether Amendment 4 to State Environmental Planning Policy Number 30 which inserted clause 9 (“clause 9”) into such policy (“the Amendment”) has retrospective effect.

2. Clause 9 provides that a reference in an environmental planning instrument, whether made before or after the commencement of this clause to ‘industry’ does not include a reference to rural industry. State Environmental Planning Policy Number 30 became operative on 8 December 1989. Clause 9 became operative in consequence of its publication in the New South Wales Government Gazette of 4 August 2000.

3. A question arises in relation to a development consent which was granted to the respondent Hawkesbury City Council (“the council”) pursuant to the provisions of the Hawkesbury Local Environmental Plan 1989. The respondent sought approval for a rural industry and on 15 January 1999, by notice of determination of a development application the council granted consent no M609/98 for a ‘rural industry - repair of farm machinery’, subject to various conditions (“the conditions”).

4. Prior to the grant of the consent, the New South Wales Court of Appeal in Egan & Anor v Hawkesbury City Council & Anor (1993) 79 LGERA 321 had made a determination which impacted upon such consent. It determined that an extractive industry was part of the genus of activities that fell under the description of industry. Such decision was followed in Elf Farm Supplies Pty Limited v Hawkesbury City Council & Anor [1999] NSWLEC 261, unreported. In that decision, this Court determined that rural industry was also a genus of industry.

5. In consequence of the latter decision, the council requested the respondent to refrain from acting upon the consent. The Court is aware that an appeal was lodged with the New South Wales Court of Appeal against the decision of Elf Farm Supplies Pty Limited v Hawkesbury City Council but that prior to the hearing of such appeal, clause 9 was made by the Minister. It is not necessary to consider whether clause 9 renders development consent M609/98 valid. Instead the Court is asked a question of law, namely whether the operation of clause 9 has retrospective effect.

6. The council contends that it is not retrospective in its operation. The council submits that clause 9 states that when the consent authority considers an application for a development such as that granted to the respondent, there is scope to determine whether the term ‘rural industry’ in any planning instrument should be considered whether made before or after the commencement of clause 9. Put another way, it is submitted the amendment gives the scope to a consent authority to take into account the impact of clause 9 whether the planning instrument in question was made before or after 4 August 2000. In support of its submissions, council has referred the Court to the decision of Moss and Phillips v Donohoe (1915) 20 CLR 580 at 621, in which Griffith CJ referred to the well established rule of construction that statutes are not to be construed so as to have retrospective effect unless they contain express words to that effect. In summary the council submits that there is no retrospective element in the amendment provided by clause 9, but that its effect merely provides power to the consent authority to entertain a rural industry when considering whether consent should be granted.

7. For the respondent, it is submitted that the provisions of s 31 of the Interpretation Act 1987 enable the Court to give a wide interpretation to the words used in clause 9. Section 31(1) of the Interpretation Act 1987 provides an act or instrument shall be construed as operating to the full extent of but so as not to exceed the legislative power of Parliament. By virtue of clause 3 of that Act, instrument includes a statutory rule and includes an instrument made under any such instrument. Ultimately, it is a question of construction to establish the intention of Parliament in making the amendment.

8. The clue to interpretation is contained in clause 3 of the amendment. The aims and objectives of the amendment are stated as follows:-

This Policy aims to amend the Principal Policy to make it clear that the term “industry” where used in environmental planning instruments does not include rural industries.

9. When one considers the actual words used in the clause 9, it is obvious that the draftsman intended that the words were to have retrospective effect. The words ‘ whether made before or after the commencement of this clause ’ refer to environmental planning instruments. If clause 9 was to be construed as counsel for the council submits there would be no need to incorporate that phrase. That is, the words ‘ whether made before or after the commencement of this clause ’ would be otiose. The test could easily have provided, ‘ a reference in an environmental planning instrument to industry does not include a reference to rural industry’ .

10. The Court concludes that the words ‘ whether made before or after the commencement of this clause’ were inserted to ensure that upon an interpretation of the relevant environmental planning instrument the words ‘rural industry’ were never to be included as an ‘industry’. Such construction is consistent with the aims and objectives of the amendment wherein it is stated that the aim of the amendment was to make it plain that the term industry, where used in environmental planning instruments, does not include rural industries.

Orders

11. The Court orders that:-

1. The point of law for determination is to be decided in favour of the respondent. Clause 9 was intended to have effect as if the term ‘rural industry’ was not included in the term ‘industry’ at any time in the Hawkesbury Local Environmental Plan.

2. The matter be re-listed for mention before the duty judge at 9.30am on Friday 29 September 2000.

3. Costs are reserved.

4. The exhibits be returned