Hvalica v Wollongong City Council

Case •

[2025] NSWLEC 119

•

20 October 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Hvalica v Wollongong City Council [2025] NSWLEC 119
Hearing dates: 26 August 2025
Date of orders: 27 October 2025
Decision date: 20 October 2025
Jurisdiction:Class 1
Before: Pritchard J
Decision:

Question

(a) Whether on the proper construction of cl 4.1A(3)(a)(i) of the [Wollongong Local Environmental Plan 2009 (the WLEP)], or by implication, the words "Zone C4 Environmental Living" are included such that it reads to the following effect:

“(i) land in a residential, employment or mixed use zone, Zone C4 Environmental Living or Zone W4 Working Waterfront, that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land”

Answer

“No”.

Question

(b) Whether, further to the answer in question (a) above, the proposed development the subject of DA2024/94 may be granted consent pursuant to cl 4.1(3) of the WLEP.

Answer

“No”.

The Court makes the following order:

(1)   Order (1) of the orders of Pritchard J delivered on 20 October 2025 is amended to read “Each party to pay their own costs”.

Catchwords:

HEARING ON SEPARATE QUESTION  - Class 1 development appeal - construction of cl 4.1A(3)(a)(i) of the Wollongong Local Environmental Plan 2009 – whether the words "Zone C4 Environmental Living" are included – whether the proposed development consent may be granted

Legislation Cited:

Acts Interpretation Act 1901 (Cth) s 15AB

Environmental Planning and Assessment Act 1979 (NSW) (as at 1 October 2010) ss 53, 54, 55, 56, 57, 58, 59, 50

Government Information (Public Access) Act 2009 (NSW) s 9

Interpretation Act 1903 (Cth) s 33

Interpretation Act 1987 (NSW) ss 5, 33, 34

Local Government Act 1993 (NSW) ss 9, 10, 11

Tamworth Regional Local Environmental Plan 2010

cl 4.1B

Wollongong Local Environmental Plan 2009 cll 4.1, 4.1A

Cases Cited:

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56

CIC Insurance v Bankstown Football Club (1997) 187 CLR 384; [2007] HCA 2

Coal & Allied Operations Pty Ltd v Crossley (2023) 112 NSWLR 130; [2023] NSWCA 182

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297; [1981] HCA 26

Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; [1991] HCA 28

Curtis v Stovin (1889) 22 QBD 513

Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627; [1984] HCA 48

Director of Public Prosecutions v Leys (2012) 44 VR 1; [2012] VSCA 304

Disorganised Developments Pty Ltd v South Australia (2023) 97 ALJR 575; [2023] HCA 22

Esso Australia Resources Pty Ltd v Federal Commissioner of Taxation (2011) 199 FCR 226; [2011] FCAFC 154

Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134

Jones v Wrotham Park Settled Estates [1980] AC 74

lnco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586

McIntosh v Lennon (2024) 114 NSWLR 36; [2024] NSWSC 169

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12

Saggers v the Sydney Market Authority (1988) 66 LGRA 42

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 74

Taylor v The Owners-Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Warringah Shire Council v Punnett & Associates Pty Ltd (2001) 122 LGERA 1; [2001] NSWCA 480

Texts Cited:

Pearce, Statutory Interpretation (10th ed, 2024, LexisNexis)

Herzfeld and Prince, Interpretation (3rd ed, 2024, Lawbook Co)

Category:Principal judgment
Parties: Alexander Luigi Hvalica (first applicant)
Natalia Hvalica (second applicant)
Wollongong City Council (respondent)
Representation:

Counsel:
A Shearer SC (applicants)
T Robertson SC (respondent)

Solicitors:
Bick & Steele (applicants)
Wollongong City Council (respondent)
File Number(s): 2025/116419
Publication restriction: Nil

JUDGMENT

Introduction

  1. This judgment arises from the hearing of separate questions following the Court’s grant on 25 June 2025, by consent, of the applicants’ notice of motion seeking a separate question hearing.

  2. The separate questions involve a threshold legal issue in relation to cl 4.1A of the Wollongong Local Environmental Plan 2009 (the WLEP) concerning the permissibility of the proposed development the subject of the development appeal in these Class 1 proceedings. The separate questions concern the proper construction of provisions in the WLEP concerning the minimum subdivision lot sizes for certain split zones.

  3. The separate questions were as follows:

  1. Whether on the proper construction of cl 4.1A(3)(a)(i) of the [WLEP], or by implication, the words "Zone C4 Environmental Living" are included such that it reads to the following effect:

“(i) land in a residential, employment or mixed use zone, Zone C4 Environmental Living or Zone W4 Working Waterfront, that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land”

  1. Whether, further to the answer in question (a) above, the proposed development the subject of DA2024/94 may be granted consent pursuant to cl 4.1(3) of the WLEP.

  1. At all relevant times, cl 4.1 and cl 4.1A of the WLEP provided as follows in relation to minimum subdivision lot size and minimum lots sizes for certain split zones:

4.1 Minimum subdivision lot size

(1) The objectives of this clause are as follows—

(a) to control the density of subdivision in accordance with the character of the location, site constraints and available services, facilities and infrastructure,

(b) to ensure lots are of a sufficient size and shape to accommodate development.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

…

(4A) In calculating the area of any lot resulting from a subdivision of land, if the lot is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included.

(4B) This clause does not apply in relation to the subdivision of land for the purpose of erecting an attached dwelling or a semi-detached dwelling in a residential zone.

(4C) This clause does not apply in relation to the subdivision of land in a residential zone on which there is an existing dual occupancy or multi dwelling housing.

4.1A Minimum lots sizes for certain split zones

(1)   The objectives of this clause are as follows-

(a)   to provide for the subdivision of lots that are within more than one zone but cannot be subdivided under clause 4. 1,

(b)   to ensure that the subdivision occurs in a manner that promotes suitable land uses and development.

(2)   This clause applies to each lot (an original lot) that contains-

(a)   land in a residential, employment or mixed use zone, Zone C4 Environmental Living or Zone W4 Working Waterfront, and

(b)   land in a rural zone or Zone C2 Environmental Conservation or Zone C3 Environmental Management.

(3)   Despite clause 4.1, development consent may be granted to subdivide an original lot to create other lots (the resulting lots) if–

(a)   one of the resulting lots will contain–

(i)    land in a residential, employment or mixed use zone or Zone W4 Working Waterfront, that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land, and

(ii)    all of the land in a rural zone, Zone C2 Environmental Conservation or Zone C3 Environmental Management that was in the original lot, and

(b)    all other resulting lots will contain land that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land.

  1. The applicants submitted that if cl 4.1A(3)(a)(i)) is construed so as to include Zone C4 Environmental Living, the proposed development would be permissible with consent. Otherwise, the applicants accepted that the proposed development would not be permissible under the relevant lot size provisions of the WLEP.

  2. As the background and drafting history set out, Zone C4 Environmental Living was referred to in earlier correspondence and drafting as Zone E4 Environmental Living. Hence, references to both Zone C4 and E4 appear in these reasons.

  3. On 14 August 2025, for the purpose of the hearing of the separate questions, the parties filed an agreed statement of facts from which the following background is largely derived.

Background

  1. The applicants, Alexander Luigi Hvalica and Natalia Hvalica, own Lot 100 in deposited plan 1207784, being land at 161 Cordeaux Road, Mount Kembla (the land).

  2. On 6 February 2024, the applicants lodged with Wollongong City Council (the respondent, Council) development application DA-2024/94 (the development application) for a Torrens title subdivision into three lots, landscaping and the removal of solar farm from DA-2021/1108/A (the proposed development).

  3. Part of the land the subject of the proposed development is zoned C4 Environmental Living (2.5429ha), while the remainder is zoned C2 Environmental Conservation (6.5ha).

  4. The minimum lot size applicable to that part of the land zoned C4 Environmental Living is 5,999m2. The minimum lot size applicable to that part of the land zoned C2 Environmental Conservation is 39.99ha.

  5. The development application proposed that the land would be subdivided as follows:

Lot

Zone

Proposed lot size

1

C4 Environmental Living

6,004m2

2

C4 Environmental Living

7,065m2

3

Part C4 Environmental Living

Part C2 Environmental Conservation

1.236ha

6.5ha

Total size: 7.736ha

  1. By email dated 11 September 2024, Ms Rebecca Goodwin, the applicants' town planner, wrote to Council in relation to the operation of cl 4.1A of the WLEP, asking “why subclause 2(a) includes Zone C4 Environmental Living, but subclause 3(a)(i) doesn’t?”.

  2. By email dated 11 September 2024, David Green, land use planning manager at Council, provided a response to Ms Goodwin as follows:

... it would appear that we intended for E4 (now C4) to be listed in both parts of the clause – there is a draft clause provided by the Dept that has listed E3 Environmental Living (in full) in both parts.

However, in the LEP amendment drafting by PCO the reference to E4/C4 wasn't included subclause 3(a)(i) [sic]

We missed its absence in the LEP amendment checking process and the Amendment was notified without it …

  1. By email dated 27 September 2024, the applicants’ town planner Ms Goodwin wrote again to Council in relation to the history and operation of cl 4.1A noting, inter alia, that the omission of the C4 zone from subcl 4.1A(3)(a)(i) made “the reference to C4 in the subclause 4.1A(2)(a) redundant”, and that the “wording of planning controls (at both a local and State government level) at the time the clause was introduced into the [W]LEP, the E4 Zone [now C4 Zone] was commonly included in references to residential zones for the purpose of applying development controls”. Ms Goodwin asked Council to further consider its position in relation to progressing the development application by determining whether it agreed that the applicants had sufficient grounds to support the development application “based on the intent of the clause”.

  2. By email dated 9 October 2024, John Wood, city wide development manager at Council, provided a response to Ms Goodwin saying that Council’s position “regarding interpretive capability to read in C4 at 4.1A(3)(a)(i)” was “that the clause should be appropriately reconsidered/redrafted via representation to the Land Use Planning to purposely include C4 into what otherwise currently reads as a meaningful clause despite the omission of C4”.

  3. The assessment report prepared by the relevant Council officers in relation to the development application recorded in relation to the application of cl 4.1A:

Development consent may be granted to subdivide the subject site, Lot 100, despite Clause 4. 1 if one of the resulting lots will contain land in a residential zone that has an area that is not less than the minimum lot size and all of the land is in the C2 zone.

This clause does not enable the subdivision of the subject site, as the original lot does not contain any land with a residential zoning, and as such, the proposal cannot satisfy the provision of Clause 4. 1A(3).

As the proposal cannot satisfy the provision of either clause 4.1 or 4. 1A, the proposed subdivision cannot be supported, and the development application must be refused.

  1. On 7 January 2025, Council refused the development application.

  2. The first reason for refusal was as follows:

1. Pursuant to the provisions of Section 4.15 (1 )(a)(i) of the Environmental Planning and Assessment Act 1979, it is considered that the proposed development is inconsistent with Wollongong Local Environmental Plan 1990 (sic) with respect to

Clause 4.1 - Minimum Subdivision lot size

Clause 4.1A - Minimum lot sizes for certain split zones

  1. On 26 March 2025, the applicants commenced these Class 1 proceedings appealing Council’s refusal of the development application.

  2. On 10 June 2025, the applicants filed a notice of motion seeking the determination of separate questions prior to any other issue in the proceedings. On 25 June 2025, I made orders by consent granting the relief in the applicants’ notice of motion.

Drafting history of clauses 4.1 and 4.1A of the WLEP

  1. The WLEP came into effect on 26 February 2010.

  2. On 26 October 2010, Council unanimously resolved that a draft planning proposal be submitted to the NSW Department of Planning to amend the WLEP in a number of respects including, relevantly, as follows:

4. Clause 4.1 Minimum Lot Size be amended to allow lots containing split zones to be subdivided along the minimum lot size boundary, or that any residual land be excluded from the minimum lot size requirements

(the planning proposal).

  1. By letter dated 21 December 2010, Council requested a gateway determination under s 56 (as it then was) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in relation to the planning proposal to amend the WLEP which had been the subject of its 26 October 2010 resolution.

  2. By letter dated 15 February 2011, the Deputy Director General (Deputy Director General) of the Department of Planning and Infrastructure (the Department), as the delegate of the Minister for Planning, wrote to Council to advise that the planning proposal to effect the proposed amendments to the WLEP should proceed, subject to conditions in a gateway determination of the same date (the Gateway Determination).

  3. Condition 1 of the Gateway Determination required Council to “work closely” with the Department on the drafting of the clause referred to at Item 6 of the planning proposal in relation to split zone subdivision, and to resubmit the draft clause for further concurrence under s 56(2)(b) of the EPA Act prior to exhibition of the planning proposal.

  4. In an email dated 21 February 2011 from Graham Towers of the Department to Mr Green of Council, Mr Towers referred to the Gateway Determination and the need to agree on an appropriate clause for "split zone subdivision." Mr Towers’ email set out the text of cl 4.1B of the Tamworth Regional Local Environmental Plan 2010, and suggested that this be used “as a base” while checking that the zone references were satisfactory. Clause 4.1B of the Tamworth Regional Local Environmental Plan 2010, as set out in Mr Towers’ email, provided as follows:

4.1 B Minimum subdivision lot sizes for certain split zones

(1)   The objectives of this clause are:

(a)   to provide for the subdivision of lots that are within more than one zone but cannot be subdivided under clause 4.1, and

(b)   to ensure that the subdivision occurs in a manner that promotes suitable land use and development.

(2)   This clause applies to each lot (an original lot) that contains:

(a)   land in a residential, business or industrial zone, and

(b)   land in Zone RU1 Primary Production, Zone RU4 Rural Small Holdings, Zone RU6 Transitions, Zone E2 Environmental Conservation or Zone E3 Environmental Management.

(3)   Despite clause 4.1, development consent may be granted to subdivide an original lot to create other lots (the resulting lots) if:

(a)   one of the resulting lots will contain:

(i)   land in a residential, business or industrial zone that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land, and

(ii)   all of the land in Zone RU1 Primary Production, Zone RU4 Rural Small Holdings, Zone RU6 Transitions, Zone E2 Environmental Conservation or Zone E3 Environmental Management that was in the original lot, and

(b)   all other resulting lots will contain land that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land.

  1. By reply email dated 7 April 2011 to Mr Towers of the Department, Mr Green suggested various modifications to the zones referred to in cl 4.1B of the Tamworth Regional Local Environmental Plan 2010, including that subcll 2(a) and 3(a) needed to include the E4 (C4) Environmental Living zone, and set out the text of a revised draft of the clause.

  2. By further reply email dated 7 April 2011 to Mr Green of Council, Mr Towers proposed a "few very minor changes" to the wording of the clause set out in Mr Green's email which were set out in an attachment.

  3. By letter dated 13 April 2011, Council wrote to the Department in relation to the proposed split zone subdivision clause, referred to the work that had been undertaken with the Department to develop a draft clause, and attached a draft clause stated to be based on cl 4.1B of the Tamworth Regional Local Environmental Plan 2010 for submission to the Director-General for concurrence to allow the planning proposal to be exhibited. The draft clause attached was in identical terms to the clause suggested by Mr Towers in his email to Mr Green of 7 April 2011, and is reproduced below using the colours in the attachment:

4.1B Minimum subdivision lot sizes for certain split zones

(1) The objectives of this clause are:

(a)   to provide for the subdivision of lots that are within more than one zone but cannot be subdivided under clause 4.1, and

(b)   to ensure that the subdivision occurs in a manner that promotes suitable land use and development.

(2)   This clause applies to each lot (an original lot) that contains:

(a)   land in a residential, business, industrial or E4 Environmental Living zone,

(b)   land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU4 Rural Small Holdings, Zone E2 Environmental Conservation or Zone E3 Environmental Management.

(3)   Despite clause 4.1, development consent may be granted to subdivide an original lot to create other lots (the resulting Jots) if:

(a)   one of the resulting lots will contain:

(i)   land in a residential, business, industrial or E4 Environmental Living zone that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land, and

(ii)   all of the land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU4 Rural Small Holdings, Zone E2 Environmental Conservation or Zone E3 Environmental Management that was in the original lot, and

(b)   all other resulting lots will contain land that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land.

  1. By letter dated 27 April 2011, the Deputy Director General wrote to Council advising that he was satisfied that the required consultation had taken place, and that the proposed clause for split zone subdivisions attached to the Deputy Director General’s letter was satisfactory.

  2. The planning proposal was then finalised by Council, and exhibited from 22 May 2011 until 24 June 2011.

  3. On 23 August 2011, Council unanimously resolved that the planning proposal (which appeared as Item 3 in the report to Council) be submitted to the Department to amend the WLEP in various respects, including in the following manner:

4   Clause 4.1 B Minimum subdivision lot sizes for certain split zones be amended to allow residential lots to contain land less than one of the minimum lot sizes.

  1. The text of the proposed clause in relation to minimum subdivision lot sizes for certain split zones set out in the report to Council was as follows (emphasis added):

Clause 4.1 B Minimum subdivision lot sizes for certain split zones

(1)   The objectives of this clause are:

(a)   To provide for the subdivision of lots that are within more than one zone but cannot be subdivided under clause 4.1, and

(b)   To ensure that the subdivision occurs in a manner that promotes suitable land use and development.

(2)   This clause applies to each lot (an original lot') that contains:

(a)   Land in a residential, business, industrial or Environmental Living zone,

(b)   Land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU4 Rural Small Holdings, Zone E2 Environmental Conservation or Zone E3 Environmental Management.

(3)   Despite clause 4.1, development consent may be granted to subdivide an original lot to create other lots (the resulting lots) if:

(a)   One of the resulting lots will contain:

i.   Land in a residential, business, industrial or Environmental Living zone that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land, and

ii.   All of the land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU4 Rural Small Holdings, Zone E2 Environmental Conservation, E3 Environmental Management that was in the original lot, and

(b)   All other resulting lots will contain land that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land.

  1. By letter dated 2 September 2011, Council submitted the finalised planning proposal to the Department.

  2. The planning proposal did not contain the text of the proposed clause in relation to minimum subdivision lot sizes for certain split zones set out in the 23 August 2011 report to Council. However, it contained a statement that the WLEP was to be amended as follows:

Clause 4.1 Minimum Lot Size be amended to allow lots containing split zones to be subdivided along the minimum lot size boundary, or that any residual land be excluded from the minimum lot size requirements.

  1. By email dated 27 October 2011, Vince Hebbard of the Parliamentary Counsel’s Office sent an email at 12:56pm to Vincent Ramos of the Parliamentary Counsel’s Office, attaching a draft instrument for Wollongong Local Environmental Plan 2009 (Amendment No 10) (draft amending LEP), and stated:

New clause 4.1AB is the latest version of clause 4.1B that was used in Tamworth LEP 2010, but includes the additional zones referred to in the Council’s letter of 13 April 2011 to the Regional office. …

  1. The wording of cl 4.1B, the proposed split-zone clause in the draft provided by Mr Hebbard, retained the reference to "Zone E4 Environmental Living" in subcl (2)(a), but omitted it from subcl (3)(a)(i). The changes made in the text provided by the Parliamentary Counsel’s Office, compared to the text in the finalised planning proposal submitted by Council to the Department, are shown in the following mark-up:

4.1B Minimum subdivision lot sizes for certain split zones

(1)   The objectives of this clause are:

(a)   to provide for the subdivision of lots that are within more than one zone but cannot be subdivided under clause 4.1, and

(b)   to ensure that the subdivision occurs in a manner that promotes suitable land uses and development.

(2)   This clause applies to each lot (an original lot) that contains:

(a)   land in a residential, business or, industrial zone or in Zone E4 Environmental Living zone, and

(b)   land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU4 Rural Primary Production Small HoldingsLots, Zone E2 Environmental Conservation or Zone E3 Environmental Management.

(3)   Despite clause 4.1, development consent may be granted to subdivide an original lot to create other lots (the resulting lots) if:

(a)   one of the resulting lots will contain:

(i)   land in a residential, business or, industrial zone or E4 Environmental Living zone that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land, and

(ii)   all of the land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU4 Rural Primary Production Small Holdings Lots, Zone E2 Environmental Conservation or Zone E3 Environmental Management that was in the original lot, and

(b)   all other resulting lots will contain land that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land.

  1. By email dated 31 October 2011, Mr Towers of the Department forwarded Mr Green of Council the text of the draft amending LEP provided by the Parliamentary Counsel’s Office. Mr Towers asked Mr Green to “check that the correct zone references are proposed in draft clause 4.1B.” By way of reply email dated 16 November 2011, Mr Green stated in relation to the draft amending LEP "l think it is ok".

  2. On 12 December 2011, by email to Mr Towers of the Department, the Parliamentary Counsel’s Office stated that a revised version of the draft amending LEP “may legally be made”. The changes in the text provided by the Parliamentary Counsel’s Office compared to those in the final amendment to cl 4.1A of the WLEP are shown in the following mark-up:

4.1B 1A Minimum subdivision lot sizes for certain split zones

(1)   The objectives of this clause are as follows:

(a)   to provide for the subdivision of lots that are within more than one zone but cannot be subdivided under clause 4.1, and

(b)   to ensure that the subdivision occurs in a manner that promotes suitable land uses and development.

(2)   This clause applies to each lot (an original lot) that contains:

(a)   land in a residential, business or industrial zone or in Zone E4 Environmental Living, and

(b)   land in Zone RU1 Primary Production, RU2 Rural Landscape, RU4 Primary Production Small Lots,a rural zone or Zone E2 Environmental Conservation or ZoneE3 Environmental Management.

(3)   Despite clause 4.1, development consent may be granted to subdivide an original lot to create other lots (the resulting lots) if:

(a)   one of the resulting lots will contain:

(i)   land in a residential, business or industrial zone that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land, and

(ii)   all of the land in a Zone RU1 Primary Production, RU2 Rural Landscape, RU4 Primary Production Small Lots,rural zone, Zone E2 Environmental Conservation or Zone E3 Environmental Management that was in the original lot, and

(b)   all other resulting lots will contain land that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land.

  1. The final amending LEP was published on 27 January 2012, with the text of cl 4.1A in the form set out above at [4].

  2. Clause 4.1A of WLEP has been amended once since it was published on 27 January 2012. On 26 April 2023, it was amended to include "Zone W4 Working Waterfront" in each of subcll (2)(a) and 3(a)(i), as well as to update the names of other referenced zones. Neither of those amendments is material to the separate questions which arise for determination here.

Relevant legislative provisions

  1. As at 1 October 2010, Part 3, Division 4 of the EPA Act provided relevantly in relation to environmental planning instruments as follows:

Part 3 Environmental planning instruments

Division 4 LEPs

53   Minister may make environmental planning instruments for local areas (LEPs)

(1) The Minister may make environmental planning instruments for the purpose of environmental planning:

(a)  in each local government area, and

(b)  in such other areas of the State (including the coastal waters of the State) as the Minister determines.

(2)  Any such instrument may be called a local environmental plan (or LEP).

54   Relevant planning authority

(1)  For the purposes of this Part, the relevant planning authority in respect of a proposed instrument is as follows:

(a)  the council for the local government area to which the proposed instrument is to apply, subject to paragraph (b),

(b)  the Director-General or any other person or body prescribed by the regulations if the Minister so directs under subsection (2).

…

55   Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal

(1)  Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).

(2)  The planning proposal is to include the following:

(a)  a statement of the objectives or intended outcomes of the proposed instrument,

(b)  an explanation of the provisions that are to be included in the proposed instrument,

(c) the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117),

(d)  if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument,

(e)  details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.

(3)  The Director-General may issue requirements with respect to the preparation of a planning proposal.

56   Gateway determination

(1)  After preparing a planning proposal, the relevant planning authority may forward it to the Minister.

(2)  After a review of the planning proposal, the Minister is to determine the following:

(a)  whether the matter should proceed (with or without variation),

(b)  whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal),

(c)  community consultation required before consideration is given to the making of the proposed instrument (the community consultation requirements),

(d)  any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument,

(e)  whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body,

(f)  the times within which the various stages of the procedure for the making of the proposed instrument are to be completed.

(3)  A determination of the community consultation requirements includes a determination under section 73A (or other provision of this Act) that the matter does not require community consultation.

(4)  The regulations may provide for the categorisation of planning proposals for the purposes of this section, and may prescribe standard community consultation requirements for each such category.

…

(6)  The relevant planning authority may, at any time, forward a revised planning proposal to the Minister.

(7) The Minister may, at any time, alter a determination made under this section.

…

58   Relevant planning authority may vary proposals or not proceed

(1)  The relevant planning authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason.

(2)  If it does so, the relevant planning authority is to forward a revised planning proposal to the Minister.

(3) Further community consultation under section 57 is not required unless the Minister so directs in a revised determination under section 56.

(4)  The relevant planning authority may also, at any time, request the Minister to determine that the matter not proceed.

59   Making of local environmental plan by Minister

(1)  The Director-General is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority. The Director-General is to consult the relevant planning authority, in accordance with the regulations, on the terms of any such draft instrument.

(2) The Minister may, following completion of community consultation:

(a)  make a local environmental plan (with or without variation of the proposals submitted by the relevant planning authority) in the terms the Minister considers appropriate, or

(b)  decide not to make the proposed local environmental plan.

(3) The Minister may defer the inclusion of a matter in a proposed local environmental plan.

(4)  If the Minister does not make the proposed local environmental plan or defers the inclusion of a matter in a proposed local environmental plan, the Minister may specify which procedures under this Division the relevant planning authority must comply with before the matter is resubmitted to the Minister.

…

  1. Section 5 of the Interpretation Act 1987 (NSW) provides in relation to the application of all Acts and instruments:

5   Application of Act

(1)  This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act.

(2)  This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.

(3)  Wherever appropriate, this Act applies to a portion of an Act or instrument in the same way as it applies to the whole of an Act or instrument.

(4)  Nothing in this Act excludes the application to an Act or instrument of a rule of construction applicable to it and not inconsistent with this Act.

(5)  This section does not authorise a statutory rule to exclude or modify the operation of Part 6 (statutory rules and certain other instruments).

(6)  The provisions of sections 24, 28, 29, 30, 30B, 33, 42, 43, 69A, 75 and 80 that apply to a statutory rule also apply to an environmental planning instrument.

  1. Section 33 of the Interpretation Act provides in relation to regard to be had to purposes or objects of Acts and statutory rules:

33   Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

  1. Section 34 of the Interpretation Act provides in relation to the use of extrinsic materials in the interpretation of Acts and statutory rules:

34   Use of extrinsic material in the interpretation of Acts and statutory rules

(1)  In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material—

(a)  to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b)  to determine the meaning of the provision—

(i)  if the provision is ambiguous or obscure, or

(ii)  if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2)  Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes—

(a)  all matters not forming part of the Act that are set out in the document containing the text of the Act as published on the NSW legislation website,

(b)  any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,

(c)  any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,

(d)  any treaty or other international agreement that is referred to in the Act,

(e)  any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f)  the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

(g)  any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and

(h)  any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

(3)  In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to—

(a)  the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and

(b)  the need to avoid prolonging legal or other proceedings without compensating advantage.

Applicants’ submissions in relation to the separate questions

  1. The applicants contended that on the proper construction of cl 4.1A(3)(a)(i) of the WLEP, or by implication, the words "Zone C4 Environmental Living" are included such that it reads to the following effect:

(i) land in a residential, employment or mixed use zone, Zone C4 Environmental Living or Zone W4 Working Waterfront, that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land

  1. The applicants submitted that this would give the clause a symmetry as between subcl (2)(a) and subcl (3)(a)(i), consistent with the clause's “clear purpose”. It would mean that the clause had application to land in Zone C4, in accordance with subcl (2) and the purpose of the clause.

  2. The applicants referred to the three conditions or considerations for reading words into a statute to correct an error that was more that simple or grammatical stated by Lord Diplock in Jones v Wrotham Park Settled Estates [1] (Jones), reformulated by Lord Nicholls in lnco Europe Ltd v First Choice Distribution (a firm) [2] (Inco), endorsed and elaborated upon by the plurality in Taylor v The Owners-Strata Plan No 11564 [3] (Taylor), and synthesised by Payne JA in McIntosh v Lennon [4] (McIntosh v Lennon). That suggested three conditions or requirements, namely, the identification of the precise purpose of the provision, satisfaction that the drafter and the Parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose, and identification of the words that the legislature would have included in the provision had the deficiency been detected before its drafting, with the possibility of a fourth condition in relation to consistency.

Identification of the purpose of the provision

1. [1980] AC 74.

2. [2000] 1 WLR 586.

3. (2014) 253 CLR 531; [2014] HCA 9.

4. (2024) 114 NSWLR 36; [2024] NSWSC 169.

  1. As to the first condition, the applicants submitted the purpose of the clause was plain. Namely, to provide for the subdivision of lots that are within more than one zone, but cannot be subdivided under cl 4.1, and to ensure that the subdivision occurs in a manner that promotes suitable land uses and development (subcl (1)) in respect of land to which the clause is stated to apply (subcl (2)). The applicants submitted that the mischief which the clause was intended to overcome arose from the “hard strictures” in cl 4.1 which when applied to lots with split-zones could produce artificial outcomes. It was made clear, in the email of 7 April 2011 from Mr Green of Council to Mr Towers of the Department, that addressing this mischief "need[ed] to include the E4 zone". This was reinforced throughout the subsequent process where the E4 Environmental Living Zone was at all times included. The application of the clause to land in the E4 (now C4) zone was made clear by the inclusion of that zone in subcl (2)(a) as land to which cl 4.1A applied in the final clause as published.

Satisfaction that the drafter (and the Parliament) inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose

  1. As to the second condition, the applicants submitted that the Court could be satisfied that the drafter inadvertently overlooked an eventuality that must be dealt with if the clause is to achieve its purpose. The words “Zone C4 Environmental Living” must be implied in cl 4.1A(3)(a)(i) to avoid absurdity or “manifest contradiction of the apparent purpose of the provision”. The Court could be “well satisfied” that a mistake was made in the drafting of the clause. This was submitted to be apparent from the text of the clause itself, and also from the background as to its drafting through the planning proposal process. There was a documentary record available providing “clear insight” into the drafting process and how the mistake arose.

  2. The mistake was submitted to readily emerge from the text of the clause. In subcl (2)(a), the clause was expressly stated to apply to land in Zone C4 Environmental Living. However, by reason of the mistake, the remainder of the provision would have the effect that the clause would have no application to land in Zone C4 Environmental Living, rendering the clause facially contradictory. The mistake was also obvious on the face of the clause by reason of the lack of symmetry between subcl (2) and subcl (3). It was apparent from the text that there “was to be a parallel symmetry between the zones referred to in subcl 2(a) and those referred to in subcl (3)(a)(i) on the one hand, and the zones referred to in subcl (2)(b) and subcl (3)(a)(ii) on the other”. The anomaly was the omission of Zone C4 Environmental Living from subcl (3)(a)(i).

  3. The mistake was also submitted to have been made “abundantly clear” from the background to the drafting of the clause through the planning proposal process. The first step in that process was pursuant to a specific gateway condition requiring consultation between Council and the Department on the wording of the split zone subdivision clause, and resubmission for further concurrence before exhibition could occur. The Department made clear that the relevant clause was to be based on cl 4.1B of the Tamworth Regional Local Environmental Plan 2010 which was to be utilised as a template, while updating the zones to which it was to apply. In this template, the applicants submitted, there was a symmetry between the zones referred to in subcll 2(a) and (3)(a)(i) on the one hand, and subcll (2)(b) and (3)(a)(ii) on the other. The zones referred to in subcl 2(a) were to be mirrored in subcl 3(a)(i), and the zones referred to in subcl 2(b) to be mirrored in subcl 3(a)(ii).

  4. The text of the revised clause set out in Mr Green’s email of 7 April 2011 included "Zone E4 Environmental Living" in both subcll 2(a) and 3(a)(i). This was maintained in all drafts exchanged between Council and the Department up to the formal resubmission for further concurrence under s 56(2)(b) of the EPA Act, as required by condition 1 of the Gateway Determination. It was also maintained in the formal resubmission required by condition 1 which occurred by way of Council’s letter of 2 September 2011 to the Department which set out the text of the clause that had been agreed. It was on the basis of this clause, the applicants submitted, that permission was sought and was given by the Deputy Director General to proceed. Following exhibition, it was also maintained in the text of the proposed clause set out in the report to Council on the basis of which on 23 August 2011, Council resolved that the planning proposal be submitted to the Department. It was only as part of the final formal drafting process involving the Parliamentary Counsel’s Office when Mr Hebbard (of the Parliamentary Counsel’s Office) sought to update the clause based on the latest version which contained “various cosmetic changes” to reflect the latest version of the provision in the Tamworth Regional Local Environmental Plan 2010, that Mr Hebbard inserted "Zone E4 Environmental Living" into the template in subcl 2(a), but mistakenly left it out of subcl 3(a)(i).

  5. The applicants submitted that this step, at the very end of the process, was not a step concerned with matters of substance, but rather with drafting to give effect to the proposal made by the relevant planning authority. And in taking that step, it was clear from Mr Hebbard's covering email to the Parliamentary Counsel’s Office that he thought that his drafting "include[d] the additional zones referred to in the Council's letter of 13 April 2011" which was the formal resubmission in accordance with condition 1 of the Gateway Determination.

Identification of the words the legislature would have included in the provision had the deficiency been detected before its drafting

  1. As to the third condition, the applicants submitted that the words that would have been included had the deficiency been detected were readily identifiable. As reformulated in lnco, this requirement involved identification of the substance of the provision that would have been made, although not necessarily the precise words that would have been used, had the error been noticed. Here, although not necessary, the precise words were readily identifiable through the drafting process. This was reflected in the text of the clause that emerged as a result of consultation between Council and the Department in satisfaction of condition 1 of the Gateway Determination. It “simply” involved adding the words "E4 Environmental Living zone" after "land in a residential, employment or mixed use zone" in subcl 3(a)(i) to mirror the use of those words in subcl (2)(a).

Consistency

  1. As to the possible fourth condition of consistency, the applicants submitted that this condition was also clearly satisfied. The words used by the drafter in cl 4.1A, in the context of the WLEP as a whole, could accommodate the words to be read in without giving to the provision an unnatural, incongruous or unreasonable construction. The Court could be comfortably satisfied that there was a drafting error in cl 4.1A which warrants correction in accordance with established principles. The correction, like that in Director of Public Prosecutions v Leys [5] (Leys) at [122], was submitted to reflect the same symmetry and correspondence that is otherwise in the provision as between the limbs of subcll (2) and (3)(a). It would involve a smaller step than that taken in McIntosh v Lennon in circumstances where the mistake here arose “irrefutably from the face of the provision and factual material available as to its genesis and drafting.”

    5. (2012) 44 VR 1; [2012] VSCA 304 at [45]-[111] (Redlich and Tate JJA and T Forrest AJA).

  2. In relation to their reliance on extrinsic materials as evidence of the error for which they contend, including the planning proposal, minutes of Council’s proceedings conducted publicly, and formal documents exchanged between the Minister or the Department and Council, the applicants submitted that the common law position in relation to use of extrinsic material derives from the High Court’s decision in CIC Insurance v Bankstown Football Club [6] (CIC), where Brennan CJ, Dawson, Toohey and Gummow JJ said that “context” is used “in its widest sense”. They submitted that that key passage in CIC has been commonly understood in subsequent authority and in leading texts as permitting recourse to any relevant material without limitation. The applicants also referred to Stevens v Kabushiki Kaisha Sony Computer Entertainment [7] (Stevens), where McHugh J at [124] said (emphasis added): [8]

[C]ontext is not limited to the text of the rest of the statute. For purposes of statutory construction, context includes the state of the law when the statute was enacted, its known or supposed defects at the tie of the history of the relevant branch of the law, including the legislative history of the statute itself. It also includes in appropriate cases ‘extrinsic materials’ such as reports of statutory bodies or commissions and parliamentary speeches – indeed any material that may throw light on the meaning that the enacting legislature intended to give the provision.

6. (1997) 187 CLR 384 at 408; [2007] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ).

7. (2005) 224 CLR 193; [2025] HCA 58.

8. See also Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39].

  1. Referring to CIC at 408, McHugh J said at [124] "[t]his is the process required by the modern approach to the common law to statutory construction".

  2. The liberality of the modern approach, was submitted to be confirmed in the two leading Australian texts on statutory interpretation – Herzfeld & Prince, Interpretation (3rd ed, 2024), (Herzfeld & Prince), and Pearce, Statutory Interpretation in Australia (10th ed, 2024) (Pearce). Pearce specifically refers to the passage from McHugh J’s decision in Stevens, and observes that “[i]t is the reference to ‘any material’ that has guided the courts”, and that the common law permits a more generous basis than the statutory provisions permitting use of extrinsic materials. [9] Herzfeld & Prince also refer to the width of the common law approach. [10]

    9. At [3.25]-[3.26].

    10. At [8.30].

  3. Pearce comments that “at common law, reference may be had to any material that may throw light on the meaning that the enacting legislature intended to give to the provision”. [11]

    11. At [3.30].

  4. The applicants also referred to Pearce’s reference to Sydney Seaplanes Pty Ltd v Page [12] (Sydney Seaplanes) where Bell P at [41] said that the common law has been held to authorise the use of extrinsic materials “even in circumstances where that use would not be permitted under the [Interpretation Act]”. Mr Shearer for the applicants referred to Esso Australia Resources Pty Ltd v Federal Commissioner of Taxation [13] (Esso) as an instance where regard was had to materials passing to and from parliamentary counsel as extrinsic materials. There was an issue in that case as to whether the primary judge had used extrinsic materials contrary to s 15AB of the Acts Interpretation Act 1901 (Cth). [14] Ultimately, the Full Court considered the totality of the extrinsic materials to confirm that which emerged from a consideration of the language of the Petroleum Resource Rent Tax Act 1987 (Cth) as a whole (at [108]-[112]). The extrinsic materials to which the Full Court had regard included explanatory memoranda, second reading speeches, draft bills, Commonwealth Government discussion papers, press releases, internal government correspondence and drafting instructions, although the Court held at [108] that “reference to the extraneous materials … [was] not necessary to make the Commissioner’s case”. The applicants submitted that the breadth of extrinsic materials to which regard has been had is otherwise confirmed by the examples given in Pearce at [3.32]. The kind of extrinsic materials relied upon by the applicants was the kind of material that can be taken into account in determining the validity of a local environmental plan following the gateway process. [15] Whether a local environmental plan is valid would be an aspect of knowing what the law is on the Council’s argument, and it would be incongruous if such material could be taken into account to determine validity, but not interpretation.

    12. (2021) 106 NSWLR 1; [2021] NSWCA 204.

    13. (2011) 199 FCR 226; [2011] FCAFC 154.

    14. See at [76], [86].

    15. See Save Little Manly Beach Foreshore Incorporated v Minister For Planning (No 3) [2015] NSWLEC 77 at [9]-[30], [37]-[39].

  5. In considering the type of extrinsic materials that may assist, the applicants submitted that regard must be had to the statutory regime under which the instrument is made. Here, that is Part 3, Div 4 of the EPA Act (as it previously stood) which outlines distinct steps. It would be odd, it was submitted, if material arising from that statutory process, particular to the making of local environmental plans, were to be disregarded notwithstanding the accepted purposive approach to interpretation.

  6. In relation to the question of accessibility of the extrinsic materials upon which they sought to rely, the applicants submitted that the proceedings of Council are generally required to be conducted in an open forum, following public notice of meetings, with everyone entitled to attend: ss 9, 10 of the Local Government Act 1993 (NSW) (LG Act). There is a right of reasonable access to any person to inspect correspondence and reports laid on the table at, or submitted to, a meeting: s 11 of the LG Act. There are also rights of access to materials provided under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). Pursuant to s 4 of that Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to that information in accordance with Part 4, unless there is an overriding public interest against disclosure of the information.

  7. The applicants also referred to Council’s reliance on various decisions from the United Kingdom in support of its accessibility contention, [16] and noted that Council did not refer to any Australian authority holding that extrinsic materials are not admissible as such unless “accessible” in some form. In this regard, there were submitted to be apparent divergences in the approach in the United Kingdom and Australia to the use of extrinsic materials, one aspect of which was adverted to in Application by Energex Limited (No 4) [17] at [14]-[15] (Finkelstein J and Messrs Shogren & Davey).

    16. In particular, Black-Clawson International Ltd v Papierwerke Wahldhof-Anschaffenburg AG [1975] AC 59; Fothergill v Monarch Airlines Ltd [1980] 1 QB 23; R (on the application of the Public and Commercial Services Union] v Minister for the Civil Service [2010] EWHC 1027; Bogdanic v Secretary of State for the Home Department [2014] EWHC 2872; R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 2 AC 349.

    17. (2011) 247 FLR 318; [2011] ACompT 4.

  8. Significantly, the applicants referred to the following discussion in Pearce at [3.34] in relation to the accessibility of materials: “[i]f the issue of accessibility is of significance in the application of the statutory provisions relating to use of extrinsic materials, it does not appear to be relevant if the common law is being invoked”. The applicants also submitted that Herzfeld & Prince likewise did not advert to any “accessibility requirement”. Nor, the applicants submitted, did the other Australian cases relied on by Council support the existence of an “accessibility requirement”:

  1. The passage referred to in the decision of Gaudron J in Corporate Affairs Commission (NSW) v Yuill [18] at 340 concerned the primacy of legislative text (that ordinarily “the words of the statute should be taken to bear their natural and ordinary meaning”), pre-dated the modern approach signalled by CIC, and was not concerned with limitations as to the types of extrinsic materials that may be received.

  2. The passage referred to in the decision of Heydon J in PGA v The Queen [19] at [138] concerned the fact that most who engage in serious crimes probably do not care what the law is, but that “people should be able to know, by recourse to a competent lawyer, what the legal consequences of a proposed course of action are before embarking on it”. That passage, it was submitted, has nothing to do with the present point concerning an “accessibility requirement”.

  3. The passage referred to in the decision of Edelman J in Harvey v Minister for Primary Industry and Resources [20] (Harvey), at [106] was part of a consideration of the common law and the importance of context which commenced with the observation that “[a]n attempt to understand the meaning of speech without any context is like an attempt to understand the meaning of a painting before the paint is applied to the canvas. Context conveys meaning”. It too has nothing to do with the present point concerning an “accessibility requirement”.

  4. Likewise, the decision of Cripps J in Saggers v the Sydney Market Authority [21] (Saggers) pre-dated CIC and the modern approach it presaged. In any event, in that case the document that was sought to be tendered was rejected because it was sought to be used as evidence of subjective intention.

    18. (1991) 172 CLR 319; [1991] HCA 28.

    19. (2012) 245 CLR 355; [2012] HCA 21.

    20. (2024) 278 CLR 116; [2024] HCA 1.

    21. (1988) 66 LGRA 42.

  1. There was, the applicants submitted, no basis for an a priori rule excluding all such extrinsic materials. The question was ultimately one of relevance and the degree of weight that the Court might place on the material. Whilst the applicants’ case did not depend on extrinsic materials, the extrinsic materials “very strongly” supported their case that the mistake was “manifest on the face of the document”.

Council’s submissions in relation to the separate questions

  1. Council made a number of general and uncontroversial submissions in relation to zoning as the primary means by which planning laws express their field of operation, and submitted that this is achieved by specifying particular zones by terminology which is intrinsic to the planning instrument and its adopted maps. [22] Council submitted that zoning combinations can be expressed using the classes of land use zones in cl 2.1 of the LEP, including “Residential zones", "Employment zones" etc, or by reference to zoning nomenclature, for example, RU2 Rural Landscape, or by describing a residue of land with innominate zones. Clause 4.1A of the WLEP was submitted to do all three things: by nominating the zones to which it applies, describing the zones which are to benefit from its “concession”, and by leaving a residue of land in innominate zones which do not enjoy the benefit of the concession for undersized subdivision.

    22. Warringah Shire Council v Punnett & Associates Pty Ltd (2001) 122 LGERA 1; [2001] NSWCA 480 at [31] (Mason P, Beazley and Ipp JJA agreeing), noting that [31] sets out the applicant Council’s submissions, not reasons of the Court.

  2. Subclauses (2) and (3) were submitted to have different purposes, and there was “no reason why they should not operate differently according to those purposes”. The purpose of subcl (2) is to describe land (the original lot) which has a mixture of zoning of a particular kind to which the concession in cl 4.1A may apply. In subcl (2), para (a) describes zones in which residential, business or industrial purposes are both objectives and permissible uses. The original lot must also contain land in a rural zone or land in two of the four conservation zones, Zone C2 Environmental Conservation or Zone C3 Environmental Management. That was submitted to describe an area of land with both urban and rural or conservation characters.

  1. The “concession” for undersized subdivision, it was submitted, will then apply if it meets the conditions in subcl (3) which considers two cases:

  1. First, a lot which need not comply with the minimum size requirement (the resulting lot) must have urban land of an area not less than the minimum size shown on the Lot Size Map, as well as all of the land must be in a rural zone and in the C2 or C3 zones. This was submitted to enable subdivision to yield an undersized lot which consolidates rural and certain conservation zones if it also contains “properly sized” residential, business or industrial zoned land.

  2. Second, the residue of the original lot must not comprise land in a rural zone or in the C2 or C3 zones, and must comply with the minimum size requirement for the particular innominate zones that fall within it. Among those, Council submitted, is the Zone C4 Environmental Living. If any one of the innominate zones comprises areas below the minimum size, the minimum subdivision lot size development standard in cl 4.1 does not apply. Accordingly, the C4 zone is treated in the same way as zones, other than the rural or C2 and C3 zones which must be part of the undersized lot and are governed by subcl (3)(a) of cl 4.1A.

  1. There was, Council submitted, nothing irrational about this consequence, subcl (2) of cl 4.1A making it clear that the original lot may comprise land in the C4 zone. As with other zones in the residue lot, the C4 zoned land must comply with the minimum lot size requirement.

  2. Council submitted that nothing on the face of the WLEP bespeaks mistake or error. On the contrary, that the land within the residue lot is likely to pick up the urban zones where residential living is an objective ensures that the C4 zone is bracketed with them in accordance with its objective to provide for low-impact residential development. This was to be compared with the objectives of zones C2 and C3 which do not mention residential purposes, even though dwelling houses are permissible in the Zone C3 Environmental Management.

  3. This was not a case, Council submitted, of “garbled text stemming from a typographical or grammatical error which may be corrected to remove an absurdity or where it is necessary to avoid defeating the object of the provision”. In such a case, the error must be clearly apparent. [23] Nor, Council submitted, were the applicants assisted by purposive construction. Clause 4.1A states its objectives in subcl (1), which objectives are both generic and anodyne, and “do not improve the argument for mistaken omission”.

    23. Taylor at [38] (French CJ, Crennan and Bell JJ).

  4. In relation to the applicants’ argument that there should be symmetry between subcll (2) and (3) of cl 4.1A as the reference to Zone C4 Environmental Living in subcl (2)(a) in conjunction with “land in a residential, business or industrial zone” must be reflected in subcl (3)(a)(i) because those words also occur in that provision, Council submitted that the purpose of subcl (2) is to describe the zones which must be contained in the parent lot, and that it has no further operative effect. How those zones are distributed as between the resulting lot and the residue lot is the subject matter of subcl (3). This may reflect a decision by the maker of the plan that what is almost exclusively a residential zone (excepting aquaculture), but with special ecological, scientific or aesthetic values, should not be permitted to “bleed into other zones which might diffuse those values”.

  5. Further, Council submitted, under the EPA Act extant at the time, Council was the planning authority, not the maker of the LEP. There was no extrinsic evidence that the plan maker, the Minister under s 59 of the EPA Act, intended any different result from that achieved by the clause. The drafting was to be arranged by the Director-General of Planning (s 59(1)), but subject to consultation with Council. That consultation occurred after Parliamentary Counsel had amended subcl 4.1A(a)(i) to exclude specific reference to Zone E4 Environmental Living. Council’s attention was drawn to the zonings referred to in the draft clause “please check that the correct zone references are proposed in draft cl. 4.1B”. The extrinsic evidence, such as it is, revealed an intention to make the instrument in the form in which it appeared. Where an instrument is amended during its drafting, Council submitted, extrinsic materials relating to its original form are irrelevant. [24] That other LEPs had similar provisions without a comparable omission suggested that the omission was deliberate. [25] Further, the provision has been amended since it was made in 2012 to add reference to a waterfront zone. Despite that amendment, the so-called error was not corrected, telling against an implication of error.

    24. Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 at 128-9 (Kirby P) where the President said “It is important to compare the Bill to which the Parliamentary remarks are addressed with the Bill as finally enacted. The remarks may be addressed to quite different, and even contrary, language.”

    25. See for example, New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46 at [108] (Bell, Gageler, Gordon and Edelman JJ).

  6. To the extent that the applicants placed reliance upon extrinsic materials, Council submitted that several principles were relevant. First, extrinsic materials cannot displace the meaning of the text: [26]

…it is always possible that through oversight or inadvertence, the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear.

The function of the court is to give effect to the will of Parliament, as expressed in the law.

26. Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; [1987] HCA 12 (Mason CJ, Wilson and Dawson JJ); and see FCT v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [59] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

  1. Second, the general principles relating to the interpretation of primary legislation are equally applicable to subordinate legislation. [27] Third, as the majority (Kiefel CJ, Gageler, Gleeson and Jagot JJ) held in Disorganized Developments at [14], the task of construction “involves attributing legal meaning to the legislative text, read in context: expounding the meaning of the text and not seeking to remedy perceived legislative inattention”. Fourth, although a purposive construction that best achieves the object of the instrument is to be preferred, and purposes may be considered in determining whether there is more than one possible construction, the court may not rewrite legislation in the light of its purposes. Again, as held by the plurality in Disorganized Developments at [15]: “Any meaning must be consistent with the language in fact used in the relevant legislation”. Disorganized Developments was submitted to be an example of where the purpose of the legislation was clear, but there was no ambiguity in the text. [28] Here, there was no ambiguity in the text of cl 4.1A, and no justification for applying a purposive construction to defeat the meaning of the text.

    27. Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575; [2023] HCA 22 (Disorganized Developments) at [14] (Kiefel CJ, Gageler, Gleeson and Jagot JJ).

    28. Disorganized Developments at [23].

  2. A further problem was submitted to be the nature of the extrinsic evidence relied upon by the applicants. To the extent that it comprises subjective opinion about what was or may have been intended, it must be ignored. Interpretation of instruments is not concerned with what the maker subjectively intended or wanted to convey, but with what a reasonable reader would understand the words used, considered in their particular context, to mean. [29] In construing instruments, contextual material should be available to a member of the public, as the reasonable reader cannot be expected to have regard to private documents, such as correspondence passing between the parties. [30]

    29. Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30 at [26] (Lord Sales and Lord Leggatt, Lord Reed, Lord Briggs, and Lady Rose agreeing) citing Trump International Golf Club Scotland Ltd v Scottish Ministers [2016] 1 WLR 85 at [33]-[34] (Lord Hodge) and [53] (Lord Carnwath); Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] 1 WLR 4317 at [15]-[19].

    30. Citing Hillside Parks Ltd v Snowdonia National Park Authority at [27]; cf Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; (2019) 241 LGERA 321; [2019] NSWCA 147 at [64] (Basten JA); and referring to “the important underlying justification for public availability of material necessary to interpret law” in R v Greciun-King [1981] 2 NSWLR 469 at 472C – E (Street CJ).

  3. In relation to the applicants’ reliance on Taylor “to justify rewriting the provision”, Council submitted that in Taylor the Court disapproved the statement in Leys (upon which the applicants relied) that it is sufficient if the modified construction was reasonably open having regard to the statutory scheme “because any modified meaning must be consistent with the language in fact used by the legislature”: Taylor at [39]. Unlike the Victorian Court of Appeal in Leys, the High Court in Taylor distinguished between a simple, grammatical drafting error which, if uncorrected, would defeat the object of the provision, and a construction that filled gaps disclosed in legislation or that made an insertion which was “too big, or too much at variance with the language in fact used by the legislature”. [31]

    31. Taylor at [38] citing Western Bank Ltd v Schindler [1977] Ch 1 at 18 (Scarman LJ), cited by

  4. Further, Council submitted, neither Esso nor Stevens established the proposition that “extrinsic materials used in the construction of statutory provisions need not be accessible to the public”. As Gleeson CJ and Kirby J observed in Ostrowski v Palmer [32] at [2], the corollary of the rule that ignorance of the law is no excuse is that “information as to the content of the law should be readily accessible”. Without access to non-public extrinsic materials relied on to prove that words were omitted in error, a member of the public could have had “no inkling that the provision which expressly said that it applied to land in zones A, B and C also applied to land in zone D.” In Black-Clawson International Ltd v Papierwerke Wahldhof-Anschaffenburg AG [33] (Black-Clawson) at 614, 629 and 638 the House of Lords opened the way to consider extrinsic materials in applying the mischief rule. Lord Reid, after referring to the contextual principle of interpretation and the need to take into account relevant facts known to the maker of a document when the document was made, said at 614A-B (emphasis added):

…the same must apply to Acts of Parliament subject to one qualification. An Act is addressed to all the lieges and it would seem wrong to take into account anything that was not public knowledge at the time. That may be common knowledge at the time or it may be some published information that Parliament can be presumed to have had in mind.

32. (2004) 218 CLR 493.

33. [1975] AC 591.

  1. Lord Wilberforce noted at 629 that in ascertaining the intention of Parliament, such matters as intelligibility to the citizen was relevant. Lord Diplock said at 638 (emphasis added): [34]

The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. Where those consequences are regulated by a statute the source of knowledge is what the statute says. In construing it the court must give effect to what the words of the statute would reasonably be understood to mean by those whose conduct it regulates… This is not to say that… the court… may not pay regard to authoritative statements that were matters of public knowledge at the time the Act was passed, as to what were regarded as deficiencies in that branch of the existing law with which the Act deals. Where such statements are made in official reports commissioned by government, laid before Parliament and published, they clearly fall within this category and may be used to resolve the ambiguity in favour of a meaning which will result in correcting those deficiencies in preference to some alternative meaning that will leave the deficiencies uncorrected. The justification of this use of such reports as an aid to the construction of the words used in the statute is that knowledge of their contents may be taken to be shared by those whose conduct the statute regulates and would influence their understanding of the meaning of ambiguous enacting words.

34. Council also referred to the decision of the House of Lords in Fothergill v Monarch Airlines Ltd [1981] AC 251 at 278B-C, 278D, 279H (Lord Wilberforce), 287H, 288D (Lord Fraser) (Fothergill v Monarch Airlines); and R (on the application of the Public and Commercial Services Union v Minister for the Civil Service [2011] 3 All ER 54; [2010] EWHC 1027 (Admin) at [53], [55] (Sales J) and Bogdanic v Secretary of State for the Home Department [2014] EWHC 2872 (QB) at [13] (Sales J).

  1. Council submitted that the accessibility principle, premised on the need for the persons who are bound by a law to understand it and regulate their conduct accordingly, has been reiterated over many years. [35] Against this weight of authority, the applicants relied upon the decision of the Full Court in Esso which did not assist them, and from which no binding rule concerning the admissibility of non-public extrinsic materials in construing legislation emerged. [36] Nor, Council submitted, does Stevens assist the applicants. In that case, the extrinsic materials were unhelpful (at [32]), and there was no discussion of admissibility, other than to rebut the use of the material to prove subjective intention (at [126]). McHugh J at [124] made the point that s 15AB(3) of the Acts Interpretation Act (Cth) required the Court to consider the desirability of persons being able to rely upon ordinary meaning, an aspect of the accessibility principle.

Considerations and conclusions

35. Referring to D Bailey and L Norbury, Bennion on Statutory Interpretation (8th ed, 2020), section 24.2 “Admissibility and Public Availability”. See R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 2 AC 349 at 397; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 340; [1991] HCA 28 (Gaudron J in dissent but not on this point); PGA v R (2012) 245 CLR 355; [2012] HCA 21 at [138] (Heydon J); Harvey at [106] (Edelman J).

36. CSR Ltd v Eddy (2005) 226 CLR; [2005] HCA 64 at [13].

General principles of statutory construction

  1. The general principles of statutory construction were uncontroversial and can be stated succinctly. In SZTAL v Minister for Immigration and Border Protection [37] , Kiefel CJ, Nettle and Gordon JJ said at [14] in relation to the starting point for the ascertainment of the meaning of a statutory provision (footnotes omitted): [38]

The starling point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

37. (2017) 262 CLR 362; [2017] HCA 74 (Kiefel CJ, Nettle and Gordon JJ).

38. See also the observations of Gageler J at [35]-[36].

  1. As explained by Bell CJ (Meagher and Kirk JJA agreeing) in Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd [39] at [14]:

The literal meaning of a statutory provision will not always accord with its legal meaning, which is to be derived from a full consideration of the language of the statute viewed as a whole and the context, general purpose and policy of the statute or a provision within it, to the extent that that is separately discernible: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320; [1981] HCA 26; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27; Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [26]; Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission (2016) 116 ACSR 473; [2016] NSWCA 298 at [77]. While the legal and the literal meaning of a statute will often coincide, it is the legal meaning of a statutory provision to which this Coult must give effect.

39. (2023) 111 NSWLR 550; [2023] NSWCA 134.

  1. The purposive approach was explained by the majority in Project Blue Sky Inc v Australian Broadcasting Authority [40] (Project Blue Sky) as follows at [78]:

[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

40. (1998) 194 CLR 355; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ).

  1. In relation to context, it is likewise well established that the meaning of words and phrases is influenced by the immediate context in which they are used. The correct approach to statutory interpretation uses "context" in its widest sense "to include such things as the existing state of the law and the mischief which, by legitimate means . . . one may discern the statute was intended to remedy": CIC at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

  2. In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [41] , French CJ and Hayne J said at [24] in relation to the context and purpose of a provision (footnotes omitted):

The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, 'Tt]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision "by reference to the language of the instrument viewed as a whole': and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.

41. (2012) 248 CLR 378; [2012] HCA 56.

  1. Their Honours also observed that determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials (at [251]).

  2. The general principles of statutory interpretation were recently helpfully summarised by Payne JA in McIntosh v Lennon at [71]-[84]. Although I have endeavoured to apply his Honour’s reasons to the approach to construction taken in these reasons for decision, I do not set out the passages in their entirety.

  1. And at [38], the majority in Taylor said that whether a court is justified in taking this step by reading a statutory provision as if it contained additional words or omitted words involves "a judgment of matters of degree". The majority also considered that Lord Diplock's three conditions as reformulated in lnco at 592 were consistent with statements of principle in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [43] , and that satisfaction of them was necessary, but left open whether satisfaction of those conditions was also sufficient (at [39]-[40]).

    43. (1981) 147 CLR 297 at 320; [1981] HCA 26.

  2. The three conditions identified by Lord Diplock in Jones and subsequently reformulated in the speech of Lord Nicholls on behalf of the House of Lords in Inco were stated by Lord Diplock in Jones at 105-106 in the following terms:

First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventually that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.

  1. The reformulation in lnco involved a reformulation of the third condition. Lord Nicholls (Lords Jauncey, Steyn, Clyde and Millett agreeing) observed that "[t]he court must be able to correct obvious drafting errors”, and that “[i]n suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words” (at 592):

Before interpreting a statute in this way the court must be abundantly sure of three matters: ( 1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.

  1. As noted by Payne JA in McIntosh v Lennon at [100], Lord Nicholls’ formulation in Inco was also considered by the Court of Appeal in NSW in Coal & Allied Operations Pty Ltd v Crossley [44] (Coal & Allied Operations). There, Leeming JA at [43] (Stern JA and Simpson AJA agreeing) confirmed that "[c]ourts are empowered to correct obvious drafting errors in all legal documents, including primary and delegated legislation". Leeming JA at [44] referred to Director of Public Prosecutions for Nauru v Fowler [45] (Nauru v Fowler) at 630 where the High Court (Gibbs CJ, Murphy, Wilson, Deane, Dawson JJ) said that it was apparent that a simple grammatical mistake had been made in drafting, and that “if the strict grammatical sense of the words is adhered to it would lead to an absurdity”. In those circumstances, “the court is entitled to attribute to the provision the meaning which it was obviously intended to have”. Whilst in the case before the court in Nauru v Fowler, it was possible to give a literal meaning to the text of the statutory provision at issue (see at [56]), Leeming JA observed that it was a case where the three conditions identified by Lord Nicholls were not sufficient (at [57]). Leeming JA concluded that the power was "available in the present class of case if three conditions are satisfied, namely: (a) the court is certain there has been an inadvertent drafting error, (b) the court is well satisfied of what the intended wording was, and (c) if the words as made are read literally, they will be absurd and irrational and irreconcilable to the purpose of the instrument". His Honour referred to the common-sense reality that ''[n]o matter how skilled the author, legal texts will always contain mistakes, a proposition familiar to any author, any judge and (I infer) any Parliamentary Counsel" (at [60]). There had been an obvious mistake and "$36" should be read as "$3".

    44. (2023) 112 NSWLR 130; [2023] NSWCA 182.

    45. (1984) 154 CLR 627; [1984] HCA 48.

  2. Before turning to consider whether the words sought to be included by the applicants in cl 4.1A of the WLEP meet Lord Diplock’s three conditions, as reformulated in Inco and approved in Taylor, as well as the fourth “consistency” condition contemplated by the authorities, it arises first to consider whether the extrinsic materials upon which the applicants rely in contending error in the drafting of cl 4.1A of the WLEP are “admissible” (in the language of Council), or differently expressed, what weight, if any, ought be attached to them in the construction of cl 4.1A.

  3. I do not accept the applicants’ submission that the mistake or error alleged here arises “irrefutably from the face of the provision”, that is, cl 4.1A. There is nothing on the face of cl 4.1A that suggests an error, irrefutable or otherwise. The clause is capable of being construed as Council submitted, such that subcl (2) describes the zones which must be contained in the parent lot, and subcl (3) specifies how those zones are distributed as between the resulting lot and the residue lot. Contrary to the applicants’ submissions, I am unable to conclude that the alleged mistake or error was “manifest on the face of the document”, or that the extrinsic materials sought to be relied on by the applicants “very strongly” support their case that the mistake was manifest of the face of the document. I do not consider anything on the face of cl 4.1A to bespeak mistake or error. This is plainly not a case of garbled or obscure text resulting from a typographical or grammatical error. Nor do the objectives of cl 4.1A stated in subcl 4.1A(1) assist the applicants’ contention in relation to mistake or error. The “error” or “mistake” sought to be remedied by the applicants here goes beyond a simple, grammatical drafting error which, if uncorrected, would defeat the object of cl 4.1A. Rather, it seeks to make an assertion that is “too big, or too much at variance with the language in fact used by the legislature”: Taylor at [38].

  4. As to the “extrinsic materials” sought to be relied on by the applicants in the interpretation of cl 4.1A(3)(a)(i), it is plain that the materials sought to be relied on do not fall within the non-exhaustive list of the material enumerated in s 34(2) of the Interpretation Act1987 (NSW), which may be considered in the interpretation of a provision or a statutory rule made under the Act. All the material listed in s 34(1) is material which forms part of the public record and is available to the public.

  5. It then arises to consider whether the materials are capable of assisting in the ascertainment of the meaning of the provision so as to fall within s 34(1)(a) or (b) of the Interpretation Act or is otherwise material the use of which is authorised by the common law.

  6. As to s 34(1)(a) and (b) of the Interpretation Act, I do not consider cl 4.1A(3)(a)(i) to be ambiguous or obscure. I find, as appears to have been accepted by the parties, that the literal meaning of cl 4.1A(3)(a)(i) is tolerably clear. Nor do I consider that the ordinary meaning conveyed by the text of cl 4.1A(3)(a)(i), taking into account its context in the WLEP and the purpose or object underlying the WLEP, leads to a result that is manifestly absurd or unreasonable. As previously noted, an available construction of cl 4.1A as a whole, is that subcl (2) describes the zones which must be contained in the parent lot and subcl (3) specifies how those zones are distributed between the resulting lot and the residue lot. As Council submitted, the clause may be read as reflecting a decision of the maker of the plan that what is almost exclusively a residential zone, with the exception of land zoned W4 Working Waterfront [46] , but with special ecological values [47] , should not be permitted to seep into other zones, which might disperse or dissipate those values.

    46. The objectives of Zone W4 Working Waterfront are:

    47. The objectives of Zone C4 Environmental Living are:

  7. It then arises to consider whether the Court would have recourse to the extrinsic materials having regard to the common law position, deriving from the High Court’s decision in CIC. It is to be accepted that the common law permits a more generous basis for using extrinsic materials than the statutory provisions permitting use of extrinsic materials: Pearce at [3.25]-[3.26]; also Herzfeld & Prince at [8.30]; Sydney Seaplanes at [41] (Bell P). However, as Council submitted, it was the Minister and not Council (the planning authority) who made the local environmental plan pursuant to s 59 of the EPA Act as it stood in 2011. There was, as Council submitted, no extrinsic material capable of suggesting that the Minister acting under s 59 intended any result other than that achieved by cl 4.1A. The EPA Act, as it then applied, provided for the Director-General to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority, and to consult with the planning authority on the terms of any draft instrument: s 59(1). Here, consultation occurred when Mr Towers of the Department forwarded to Mr Green of Council the draft of the Parliamentary Counsel’s Office which was eventually published and was in the form which did not include in subcl 4.1A(3)(a)(1) a reference to Zone C4 Environmental Living. In Mr Towers’ email of 31 October 2011, Mr Green’s attention was directed to the zonings referred to in the draft clause, and he was asked to “[p]lease check the correct zone references” were proposed in the draft. On 16 November 2011, Mr Green replied to Mr Towers “I think it is OK.” Nothing in any of this suggests that Parliamentary Counsel’s Office intended to draft anything other than the language which appeared eventually in cl 4.1A as made, or is capable of throwing light on the meaning that the Minister intended to give to the provision. [48]

    48. Stevens v Kabushiki at [124] (McHugh J).

  8. The communications between Mr Green of Council and Mr Towers of the Department, and with the Parliamentary Counsel’s Office do not fall within the examples of extrinsic materials given by Pearce at [3.31]-[3.32] which include Parliamentary debates, Ministerial statements, Parliamentary committee reports, departmental information papers, Ministerial communiques, government legal advice and drafting instructions, draft Bills and commentary, explanatory memoranda for other Bills, reports on statutory review of legislation, budget papers, government position papers, Departmental information papers, Ministerial communiques, government legal advice, drafting instructions, Law Reform Committee reports, reports of government expert bodies, reports of specialist bodies and government response, reports of international bodies, similar legislation, and drafting guidelines and manuals. Nor are they comprehended within the breadth of extrinsic materials referred to by the Full Court in Esso at [108]-[112] where the admissibility of extrinsic materials was not an issue before the Court, but upon which the applicants placed particular weight.

  9. To the extent it might be suggested that Mr Green’s communications with Mr Towers are capable of meeting the description of “drafting instructions” (Pearce at [3.32]). I do not accept that they can be so characterised. At best, that correspondence constitutes subjective opinion on the part of Mr Green as to what may have been intended, not the notional intention of the Minister in making the amending LEP and what a reasonable reader would understand the words used, in context, to mean. And Mr Green’s correspondence to the applicants’ town planner some 13 years after the amending LEP commenced stating that “it would appear that we intended for E4 (now C4) to be listed in both parts of the clause” and that “[w]e missed its absence in the LEP amendment checking process and the Amendment was notified without it” cannot bear on the construction of cl 4.1A as at the time it was made. As the majority held in Disorganized Developments at [14], the task of construction “involves attributing legal meaning to the legislative text, read in context: expounding the meaning of the text and not seeking to remedy perceived legislative inattention.” Construction is not speculation, and is not repair: Taylor at [66] per French CJ, Crennan and Bell JJ. And as Payne JA observed in McIntosh v Lennon at [1000], the effect of Taylor appears to be to discourage some of the judicial readiness to read words into statutes. In the present case, there is nothing evincing a purpose of the maker of the amending LEP which is manifest, nor is the error in drafting plain and contrary to the legislative purpose; cf Leys at [110].

  10. Here, the applicants attached significance to the approach of the Victorian Court of Appeal in Leys in reading into the clause there under consideration words to reflect the “same symmetry” as the other clauses which concerned offences which occurred partly before and partly after the provisions which repealed the “old” combined custody and treatment orders, intensive correction orders and community-based orders came into force (at [122]). For the reasons given, I do not consider there to be any sufficient expression of clear intent of the maker of cl 4.1A, or of context, which would lead to the conclusion that applying a literal meaning would stultify the intent of the clause and justify the Court in abandoning its literal meaning.

  11. It is undoubtedly correct, as submitted by the applicants in support of their accessibility contention, that the proceedings of Council are required to be conducted in an open forum, following notice to the public, and that there is a right of reasonable access to any person to inspect correspondence and reports laid on the table at, or submitted to a meeting: ss 9, 10 and 11 of the LG Act. Likewise, there are also rights of public access to materials under the GIPA Act. However, the principal, in my view insurmountable, difficulty for the applicants in their accessibility argument is that the correspondence which passed between Mr Green and Mr Towers in relation to the amending LEP was not material which was readily available to the public at the time the amending LEP was made in 2011. As Lord Reid said in Black-Clawson at 614A-B, “it would seem wrong to take into account anything that was not public knowledge at the time”. And as Lord Diplock said at 638 in relation to the justification of the use of statements made in official reports commissioned by government as an aid to the construction of the words used in a statute, “knowledge of other contexts may be taken to be shared by those whose conduct the statute regulates and would influence their understanding of the meaning of ambiguous enacting rewords.” Here, as I have found, there is no relevant ambiguity in the language of cl 4.1A, nor can the correspondence between Mr Green and Mr Towers be described as having been a matter of public knowledge, available to the public at large, or in the public domain, at the time the amending LEP was made.

  12. For the foregoing reasons I have determined that no weight can be attached to the extrinsic materials sought to be relied on by the applicants in the construction of cl 4.1A of the WLEP.

  13. Turning then to the first of Lord Diplock’s conditions, as reformulated in Inco and approved in Taylor, namely, the identification of the precise purpose of the provision, it might be accepted, as the applicants submitted, that the purpose of cl 4.1A is to provide for the subdivision of lots that are within more than one zone, but cannot be subdivided under cl 4.1, and to ensure that the subdivision occurs in a manner that promotes suitable land uses and development (subcl (1)) in respect of land to which the clause is stated to ally (subcl (2)). However, I do not derive from the text of cl 4.1A read, as a whole, in context or purposively, any purpose such as that suggested by the applicants that a purpose was the inclusion of the C4 Environmental Living Zone in subcl 4.1A(3)(a)(i) to address the “hard strictures” in cl 4.1.

  14. As to the second condition, namely, satisfaction that the drafter and the parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose, I have, for the reasons given, not attached any weight to the so-called extrinsic materials upon which the applicants sought to rely. Nor have I found that the ordinary meaning conveyed by the text of cl 4.1A(3)(a)(i), taking into account its context in the WLEP and the purpose or object underlying the WLEP, leads to a result that is manifestly absurd or unreasonable. I am unable to conclude that the second of Lord Diplock’s conditions, reformulated in Inco, is satisfied.

  15. As to the third condition, namely, identification of the words that the legislature would have included in the provision had the deficiency been detected before its drafting, given by conclusions in relation to the first and second conclusions, I am unable to be satisfied that the language proposed by the applicants is that which the plan maker would have adopted if the “mistake” or “error” had been drawn to their attention.

  16. And as to the consistency condition, although in light of my conclusions in relation to the first three conditions it not be necessary to decide, I would find that no inconsistency would be created by the words sought to be included by the applicants.

  17. And as to the additional matters which Payne JA in McIntosh v Lennon suggested at [157] that the authorities may require, I find that the implication would be too big or too much at variance with the language in fact used: Taylor at [32] quoting Inco at 592; and whilst the modified construction would not be unnatural, incongruous or unreasonable for the reasons given (Leys at [97], and [109]-[110]), for the reasons given, it is not a construction available having regard to general principles of statutory interpretation and the requirements for reading words into a statute, explained by Taylor.

Conclusion

  1. It follows from the foregoing reasons that the answer to each of the two questions sought to be heard and decided separately before any trial in the proceedings is “No”.

  2. Neither party made submissions, orally or in writing, in relation to the question of costs. As I have answered the separate questions in the negative, unless the applicants notify Council and my chambers that they should not pay Council’s costs in relation to the hearing of the separate questions, I will made an order in chambers that the applicants pay the respondent’s costs in relation to the hearing of the separate questions.

Decision

  1. The answers to the separate questions are as follows:

Question

(a) Whether on the proper construction of cl 4.1A(3)(a)(i) of the [Wollongong Local Environmental Plan 2009 (the WLEP)], or by implication, the words "Zone C4 Environmental Living" are included such that it reads to the following effect:

“(i) land in a residential, employment or mixed use zone, Zone C4 Environmental Living or Zone W4 Working Waterfront, that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land”

Answer

“No”.

Question

(b) Whether, further to the answer in question (a) above, the proposed development the subject of DA2024/94 may be granted consent pursuant to cl 4.1(3) of the WLEP.

Answer

“No”.

  1. The Court makes the following order:

  1. Unless the applicants notify the Court within 7 days of the publication of these reasons, that is by 27 October 2025, that they seek to be heard on the question of costs, the applicants to pay Council’s costs of the proceedings.

Addendum made on 27 October 2025

  1. On 27 October 2025, the solicitor for the applicant, with the consent of Council, sought that order (1) made 20 October 2025 be amended to read:

“1. Each party to pay its own costs.”

  1. Accordingly, I make the following order:

  1. Order (1) of the orders of Pritchard J delivered on 20 October 2025 is amended to read “Each party to pay their own costs”.

**********

Endnotes


Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115.


• To retain and encourage industrial and maritime activities on foreshores; To identify sites for maritime purposes and for activities requiring direct foreshore access.


• To ensure that development does not have an adverse impact on the environment and visual qualities of the foreshore.


• To encourage employment opportunities.


• To minimise any adverse effect of development on land uses in other zones.


• To encourage development that is compatible with the characteristics of Wollongong Harbour and Belmore Basin.


Permitted with consent in the zone are: Aquaculture; Boat building and repair facilities; Boat launching ramps; Charter and tourism boating facilities; Food and drink premises; Information and education facilities; Jetties; Kiosks; Light industries; Marinas; Markets; Mooring pens; Roads; Signage.


• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.


• To ensure that residential development does not have an adverse effect on those values.


Permitted with consent in the zone are: Bed and breakfast accommodation; Business identification signs; Community facilities; Dwelling houses; Environmental facilities; Environmental protection works; Home-based child care; Home businesses; Home industries; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Roads; Secondary dwellings; Tank-based aquaculture.

Amendments

27 October 2025 - Addendum added.

Decision last updated: 27 October 2025

Cases Citing This Decision

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