Lithgow City Council v Newera Defendo Pty Ltd

[2019] NSWLEC 188

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lithgow City Council v Newera Defendo Pty Ltd [2019] NSWLEC 188
Hearing dates:	12 November 2019
Date of orders:	05 December 2019
Decision date:	05 December 2019
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See orders at [68]
Catchwords:	COMPLYING DEVELOPMENT CERTIFICATE - solar voltaic array erected in R4 Large Lot Residential Zone - array erected relying on complying development certificate issued pursuant to State Environmental Planning Policy (Exempt and Complying Development) 2008 - policy not available to permit construction of the array - complying development certificate invalid - second complying development certificate issued - second complying development certificate relies on State Environmental Planning Policy (Infrastructure) 2007 - solar voltaic array rendered permissible in the R4 Zone despite being otherwise prohibited - validity of second complying development certificate - issue of whether State Environmental Planning Policy (Infrastructure) 2007 rendered solar voltaic array complying development - construction of provision of State Environmental Planning Policy (Infrastructure) 2007 - solar voltaic array complying development - second complying development certificate valid - summons dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 3.28, 4.59 Interpretation Act 1978, s 33 Lithgow Local Environmental Plan 2014 State Environmental Planning Policy (Exempt and Complying Development) 2008 State Environmental Planning Policy (Infrastructure) 2007, cll 4, 8, 20B, 26, 34-39, 58C, 71C, 116A, 130 Uniform Civil Procedure Rules 2005, Pt 42 r 1
Cases Cited:	Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172 Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) [2019] NSWLEC 171 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Cooper-Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs)(2010) 239 CLR 531; [2010] HCA 1 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Trives v Hornsby (2015) 89 NSWLR 268; [2015] NSWCA 158
Category:	Principal judgment
Parties:	Lithgow City Council (Applicant) Newera Defendo Pty Ltd (First Respondent) David Richardson (Second Respondent)
Representation:	Counsel: Ms J Walker, barrister (Applicant) Mr S Nash, barrister (First Respondent)   Solicitors: Pikes & Verekers Lawyers (Applicant) Holding Redlich (First Respondent)
File Number(s):	250279 of 2019
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The Summons commencing the proceedings

Representation

The relevant environmental planning instruments

Introduction

The LEP

The Exempt and Complying Development SEPP

The Infrastructure SEPP

Commencement of the proceedings

Legislative history matters

The mutual undertakings

The framework for determination of the matters in contention

The first Complying Development Certificate

The contested meaning of the critical words

The second Complying Development Certificate

The Company’s submissions

The Company’s submissions

The Council’s submissions in reply

Construing the contested phrase

Costs

Orders

JUDGMENT

Introduction

1. On 12 August 2019, Lithgow City Council (the Council) commenced these judicial review proceedings concerning two Complying Development Certificates issued by Mr David Richardson, an accredited private certifier (the Second Respondent). The Complying Development Certificates (CDC) were each issued to Newera Defendo Pty Ltd (the Company). The Complying Development Certificates both concerned the erection, by the Company, of a 100-kilowatt solar voltaic array which had been erected at 927 Range Road, Portland (the site). The solar voltaic array had been erected at the site for the purposes of supplying power to the grid. The solar voltaic array is constructed at ground level, a matter engaging a particular relevant provision of one of the two State Environmental Planning Policies (State Environmental Planning Policy (Infrastructure) 2007 – the Infrastructure SEPP) requiring consideration in these proceedings.

2. The Company is the First Respondent in these proceedings and has taken an active part in them as contradictor.

3. The Second Respondent has taken no part in the proceedings prior to the hearing. As a consequence, I had the Second Respondent called three times outside the courtroom at the commencement of the hearing and there was no appearance by, or on behalf of, him. However, on the basis of Affidavits of Service in evidence, I am satisfied that the Second Respondent was aware of these proceedings and that it was appropriate to proceed to hear and determine the matters in contest in his absence. Indeed, given the fact that the Council seeks no substantive orders against the Second Respondent, there was no potential prejudice to him as a consequence of my proceeding to hear and determine matters in his absence.

The Summons commencing the proceedings

4. The Summons commencing the proceedings sought relief in the following terms:

That the Court:

1 Extend the time, pursuant to Rule 59.10 the Uniform Civil Procedure Rules 2005, for commencing these proceedings.

2   Declared void of the Complying Development Certificate 190024 issued on 13 February 2019 for a 100 kW Ground mount Solar Array at 927 Range Road, Portland.

3   Declared void that purported revised Complying Development Certificate 190024/01 issued on or about 22 April 2019 but also bearing the date of 13 February 2019.

4   Restrain the First Respondent from using, permitting or suffering to be used the Ground mount Solar Array for the production of solar energy or for any other purpose unless and until development consent has been granted for that purpose.

5   Order the Respondents to pay the Applicant's costs herein.

Representation

5. The Council was represented by Ms Walker of counsel, whilst the Company was represented by Mr Nash of counsel.

The relevant environmental planning instruments

Introduction

6. Three environmental planning instruments require to be noted in these proceedings. They are:

1. Lithgow Local Environmental Plan 2014 (the LEP);

2. State Environmental Planning Policy (Infrastructure) 2007 (the Infrastructure SEPP); and

3. State Environmental Planning Policy (Exempt and Complying Development) 2008 (the Exempt and Complying Development SEPP).

The LEP

7. For the purposes of understanding these proceedings, it is sufficient to note that the site is zoned R5 Large Lot Residential in the Land Use Table of the LEP. Of relevance, it is to be observed that the term electricity generating works is defined in the Dictionary to the LEP in the following terms.

electricity generating works means a building or place used for the purpose of making or generating electricity.

8. The solar voltaic array constructed at the site falls within the scope of this definition.

9. In the Land Use Table of the LEP, development for this purpose is not listed as being permissible, with or without consent in the R5 Zone, and, as a consequence, is prohibited in that zone unless otherwise permitted by some other environmental planning instrument which overrides that LEP prohibition.

The Exempt and Complying Development SEPP

10. It is unnecessary to set out any of the specific provisions of the Exempt and Complying Development SEPP. It is sufficient to note that:

1. This is to be regarded as a beneficial and facultative environmental planning instrument which, through specific provisions contained in it, can override elements of local environmental plans in nominated circumstances; however

2. None of those nominated circumstances are capable of being invoked to permit setting aside the prohibition in the LEP which would otherwise bar construction of the solar voltaic array that has, in fact, been erected by the Company on the site. The Exempt and Complying Development SEPP contains no provision that could, even at the most extravagant interpretation, possibly encompass the solar voltaic array erected at the site and render it permissible utilising this SEPP as the vehicle.

The Infrastructure SEPP

11. Like the Exempt and Complying Development SEPP, the Infrastructure SEPP is also to be characterised as being a beneficial and facultative environmental planning instrument. This can be seen from the terms of cl 8(1), a provision in the following terms:

8   Relationship to other environmental planning instruments

Note. This clause is subject to section 3.28(4) of the Act.

(1)   Except as provided by subclause (2) [not here relevant], if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

12. It is to be observed that s 3.28(4) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) plays no role in these proceedings.

13. The Infrastructure SEPP operates on a statewide basis (this being given effect by cl 4 of the SEPP).

14. A number of provisions of the SEPP are engaged for my consideration, either directly or for indirect comparative purposes.

15. The construction of one particular provision is in contest in these proceedings. This provision is, relevantly, in the following terms:

20B   General requirements for complying development

(1)   This clause applies to any development that this Policy provides is complying development.

(2)   To be complying development, the development must—

(a)   not be exempt development under this Policy, and

(b)   be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out, and

(c)   …, and

(c1)   …, and

(d)   …, and

(e)   …, and

(f)   …, and

(g)   …, and

(h)   ….

16. It is also appropriate to note one element of the structure of this instrument that has particular relevance to the solar voltaic array, the erection of which has given rise to these proceedings.

17. The provisions of the above set out cl 20B(2)(b) are contained in Div 5 of Pt 2 of the Infrastructure SEPP. Division 4, Pt 3 of the Infrastructure SEPP deals with Electricity generating works or solar energy systems. It is within this Division that the development installed by the Company would, conventionally, fall. There are six provisions in this Division, dividing up types of development of this nature into different categories. These clauses are:

34   Development permitted with consent;

35   Other development permitted with consent where electricity generating works permitted;

35   Development permitted without consent;

37   Complying development;

38   Prohibited development; and

39   Exempt development.

18. Of this group of provisions, cl 35 warrants noting as it is a significant element invoked by Ms Walker in her submissions on behalf of the Council. It is in the following terms:

35   Other development permitted with consent where electricity generating works permitted

If, under any environmental planning instrument (including this Policy), development for the purpose of coal-fired or gas-fired electricity generating works may be carried out on land with consent, development for the purpose of industry may also be carried out by any person with consent on that land if the industry—

a)   is located close to the works, and

b)   provides opportunities for energy efficiency or co-generation in the operation of the works.

19. Although Ms Walker and Mr Nash also cite other provisions of the Infrastructure SEPP, as later discussed, it is not necessary to set out the terms of those provisions.

Commencement of the proceedings

20. At least on a contingent basis, the Council sought leave to commence these proceedings. That leave was sought on the basis that these judicial review proceedings had not been commenced within the general three-month window permitted by s 4.59 of the EP&A Act for such commencement. Although prudent, perhaps, to have sought such leave, granting of leave was unnecessary in circumstances where the challenge was based on an asserted lack of jurisdiction to make the decision sought to be impugned.

21. In Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) [2019] NSWLEC 171, a decision of Pain J delivered on 7 November 2019, her Honour explained why, after the High Court’s decision in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 (Kirk), a provision such as s 4.59 (here relevant) does not preclude judicial review of the full range of potential jurisdictional errors.

22. In doing so, she cited the decision of Preston CJ in Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172. In Brown, his Honour said, at [39]:

39   After the High Court's decision in Kirk, the full range of jurisdictional error remains subject to judicial review, notwithstanding a privative clause. A privative clause in State legislation cannot validly compromise the capacity of a State Supreme Court to exercise its supervisory jurisdiction (which is constitutionally entrenched) for review for jurisdictional error. The supervisory jurisdiction of the State of New South Wales' Supreme Court is divided between the Supreme Court and the Land and Environment Court, depending on the statute under which powers and functions have been exercised and are subject to review. A privative clause, such as s 101, may remain valid but it will be read down so as to preserve the supervisory jurisdiction to review for jurisdictional error.

23. It follows that the application of Kirk provides a proper basis for not needing to grant the Council any extension of time in these circumstances.

Legislative history matters

24. Ms Walker took me through the evolution of the Infrastructure SEPP and of other instruments which she said provided relevant guidance by analogy.

25. In her written and oral submissions, Ms Walker took me through the legislative history of cl 20B and considered how the expression, “an environmental planning instrument applying to the land”, had been used in other contexts in the EP&A Act and other SEPPs. However, no conclusive inference was able to be drawn from this analysis undertaken by Ms Walker (see her written submissions, pages 9-10, [36]-[38]).

26. In the context where proper application of the rules of construction to the contested element of the Infrastructure SEPP itself enables the answer to this contest to be determined, I am satisfied that this historical drafting analysis is unnecessary to be considered.

The mutual undertakings

27. During the course of the proceedings, I discussed with the representatives of the parties the question of what consequential positions would be adopted by each of them, depending on the outcome of the proceedings. Given the conclusion that I have reached, that the position advanced for the Company is correct and that the second Complying Development Certificate is valid, it is appropriate to note the positions proffered by each of the parties. These are:

• Mr Nash indicated that, if the outcome was as I have determined is appropriate, the Company would surrender the first Complying Development Certificate; and

• Ms Walker indicated that the Council would forbear taking any action with respect to activities undertaken by the Company in reliance on the first Complying Development Certificate.

The framework for determination of the matters in contention

28. There is agreement that the solar voltaic array is rendered permissible by the application of the Infrastructure SEPP. What is in contest is whether the development is capable of being approved as complying development (that being development capable of approval by a private certifier as has here occurred) or whether development consent is required (that requiring a development application to be made to the Council and subject to an assessment process under the EP&A Act).

29. If the former position applies, given the undertaking by the Council earlier noted concerning forbearance with respect to taking enforcement action for the period between the first and second Complying Development Certificates, the result must be the dismissal of the Council’s summons.

30. If, however, I was to conclude that the solar voltaic array required development consent (such consent not having been sought and obtained from the Council), it would be necessary for two applications to be made to the Council. Those will be an application for a building information certificate (thus addressing questions of structural adequacy of the array) and a development application for the use of the array (thus permitting an assessment of the appropriateness of permitting use of the structure at its present location). Only if both those applications were to be successful could the array commence to function and provide power to the grid.

The first Complying Development Certificate

31. For the reasons noted at [10], the Complying Development Certificate (the CDC) purportedly issued in reliance on the Exempt and Complying Development SEPP cannot provide a basis for the first CDC. It is invalid.

32. The mutually complementary positions noted earlier, at [27], have the effect of tidying up the totality of the proceedings and render it unnecessary for me to make any declaration with respect to the first CDC, being the certificate purportedly issued pursuant to the Exempt and Complying Development SEPP.

The contested meaning of the critical words

33. I have earlier set out the relevant elements of cl 20B of the Infrastructure SEPP. That with which I must engage, for the purposes of determining whether or not the CDC issued under this instrument is valid or not, is, as previously noted, contained in cl 20B(2)(b) of this instrument. It is appropriate to repeat the wording of this element of cl 20B, with added emphasis highlighting the narrow element of the provision, the correct interpretation of which is now the sole element in dispute between the parties. The relevant elements of this provision are in the following terms (emphasis added):

20B   General requirements for complying development

(1)   This clause applies to any development that this Policy provides is complying development.

(2)   To be complying development, the development must—

(a)   not be exempt development under this Policy, and

(b)   be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out, and

(c)   …, and

(c1)   …, and

(d)   …, and

(e)   …, and

(f)   …, and

(g)   …, and

(h)   ….

34. The competition between the parties concerning the approach to be taken to the above provision is a simple one.

35. For the Council, Ms Walker advances the proposition that the provision should be read as if the words (other than this policy) appear after the word “instrument”.

36. For the Company, on the other hand, Mr Nash submits that the provision should be given its ordinary meaning, this meaning being an inclusive one bringing within the operation of the provision the development undertaken by the Company pursuant to the second CDC, being development rendered permissible by the operation of the Infrastructure SEPP (this being, in itself, an environmental planning instrument).

37. Although argued by Ms Walker as if a matter of considerable complexity, I am satisfied that this is not the case and that the position advanced by Mr Nash is undoubtedly correct on a proper contextual analysis of the instrument itself. I set out below why I have reached this conclusion.

The second Complying Development Certificate

The Company’s submissions

38. Ms Walker initially made three main submissions regarding the validity of the second CDC:

• first, that the development was not complying development under the Infrastructure SEPP;

• second, that the current matter should be distinguished from the Court of Appeal decision in Trives v Hornsby (2015) 89 NSWLR 268; [2015] NSWCA 158 (Trives v Hornsby); and

• third, even if the Court agreed with the Council’s construction of cl 20B(2)(b) based on Trives v Hornsby, the decision to reissue the second CDC was manifestly unreasonable.

39. During the course of Ms Walker’s oral submissions, the parties accepted that Trives v Hornsby did not arise to be distinguished in the current matter and further submissions were not needed on this point. As a consequence, I do not need to address further Ms Walker’s submissions on this and confine myself to the first of Ms Walker’s submissions.

40. To support her submissions that the development was not compliant with the Infrastructure SEPP, Ms Walker referred to a number of clauses within the SEPP that went to whether development was complying development or not, this included cl 20B, which has already been set out elsewhere in the judgment, cl 34 Development permitted with consent (in written submissions incorrectly labelled as 33), subcll 7 and 8 and cl 37 Complying Development subcll 2(a) and 2(c). It is unnecessary for me to set out the elements of cl 34 and cl 37, Ms Walker accepts that the Development is a solar energy system which satisfies the requirements of cl 34(8) and cl 37(2)(c) (Written submissions page 7, para [25]).

41. Ms Walker submitted that the correct and confined issue is whether cl 20B(2)(b) is satisfied. Ms Walker submitted that although, on one view, the Infrastructure SEPP is an environmental planning instrument and therefore makes the Company’s development permissible with consent, another, preferable reading of cl 20B is that the expression “an environmental planning instrument applying to the land” should read “an environmental planning instrument (other than this policy)”, which would mean the development was not permissible as complying development but could only take place with consent from the Council. This was the construction she favoured and proposed should be adopted (Written submissions page 7, paras [25]-[27]).

42. Ms Walker cited s 33 of the Interpretation Act 1978, submitting the Court is required to prefer a construction that promotes the purpose or object underlying the instrument (Written submissions page 8, para 28). Ms Walker also noted the related statutory interpretation principle that statutory provisions must be read in context (citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 – written submissions page 8, para [29]).

43. To support her submission that the underlying purpose of the Infrastructure SEPP would align with the construction she advanced, Ms Walker went to various other divisions in Part 3 of the Infrastructure SEPP to demonstrate, on her analysis, a general rule of the Part that most types of development which were complying under Part 3 of this SEPP were also permissible with consent by virtue of that same part (Written submissions page 8, paras 31-32). Ms Walker submitted that this pattern indicated that it was more likely cl 20B(2)(b) was intended to impose a broadly applicable constraint of requiring complying development to be permissible under another instrument, rather than requiring permissibility under the Infrastructure SEPP itself (Written submissions page 9, para [33]).

44. Finally, on this issue, Ms Walker submitted that in context, cl 20B(2)(b) had no single, obvious meaning and therefore her favoured construction, that being one which a development must first be permissible under an EPI other than the Infrastructure SEPP, should be adopted by the Court (Written submissions page 11, para [39]).

The Company’s submissions

45. Mr Nash detailed his submissions on the second CDC at various points throughout his written submissions. He first provided a summary of the Company’s position on pages 3 and 4, paras [6] – [10]. The general position set out by this material is that, if the original CDC was not validly issued, the Infrastructure SEPP was an available source of power for the issue of the second CDC.

46. Mr Nash submitted his construction, that “an environmental planning instrument applying to the land” includes the Infrastructure SEPP itself, is correct, as it follows from a plain, natural and literal reading of cl 20B (Written Submissions page 12, para [44]).

47. Mr Nash further submitted that there was no ambiguity in the plain text of cl 20B(2)(b) that mandated extraneous material to inform its interpretation, as necessary for the Council’s construction (Written submissions page 12, para [45]). He submitted that under cl 34(8) of the Infrastructure SEPP, the proposal was permissible with development consent under that SEPP (Written submissions page 12, para [46]-[47]).

48. Mr Nash rejected the Council’s submission, as he puts it, that generally every category of development which is complying under any division of Part 3 of the Infrastructure SEPP is already permissible with consent under the same division, and therefore there would be little work for cl 20B(2) to do if his construction was correct.

49. Mr Nash gave the example of cl 130, Complying development—connections to Sydney and Hunter water supply and sewerage, of Division 26 of the Infrastructure SEPP to demonstrate his argument on this point. A requirement to achieving complying development status under this clause includes compliance with cl 20B (Written submissions, page 12 to page 13, para [48]-[49]). He submitted that this indicates that his construction of cl 20B has work to do even if the reference in cl 20B(2)(b) to an ‘environmental planning instrument’ includes the Infrastructure SEPP and this demonstrates that the Council’s construction should not be accepted (Written submissions, page 13, para [49]-[50]).

The Council’s submissions in reply

50. Ms Walker responded to Mr Nash’s submission regarding cl 130 of the Infrastructure SEPP, putting that the Council had already acknowledged that cl 130 was an exception to the rule she had posited in her earlier submissions. Ms Walker noted that cl 130 is contained in Division 26, which is titled ‘Special provisions’ and accepted that this clause would not conform to the overall pattern she had submitted is contained in Part 3 of the SEPP (Written submissions in reply, page 3, para [8]).

51. Ms Walker noted that, for her construction to be correct, she did not rely on there being no exceptions to the pattern, but merely the existence of a pattern, and that she is asking the Court to draw from that pattern, a conclusion about the intention of the drafters of cl 20B(2)(b).

52. Ms Walker noted that the pattern she had detailed in her earlier submissions existed before cl 20B(2)(b) was amended to its current wording, and when the amendment to effect the current wording was being made, the drafters would have been aware that in most cases development which was complying under any provision of the Infrastructure SEPP would also have been permissible with consent under an earlier provision of the same division.

53. Ms Walker then submitted that it was inherently unlikely that the drafters would have chosen “an environmental planning policy” instead of “under this policy” if they intended that permissibility under the SEPP itself could satisfy cl 20B(2)(b) (Written submissions in reply, page 3, para [9]).

54. Ms Walker stressed in her submissions in reply that the Council was not asking the Court to draw any inferences about which policy the drafters would have been more likely to adopt but to determine which intention was indicated by the terms of cl 20(2)(b) read in context and having regard to its history (Written submissions in reply, page 3, para [10]).

55. Ms Walker then further canvassed the history of cl 20B(2)(b) of the Infrastructure SEPP in paras [11]-[14]. It is unnecessary to go in to detail in this aspect of her submissions as I am satisfied a plain reading of the clause indicates the correct construction of it.

Construing the contested phrase

56. I have earlier cited the decision of Pain J in Central Coast Council as a basis for explaining why leave was not required to commence these proceedings. Her Honour's decision also provides a useful starting point for determining the approach to determination of the appropriate understanding of the provision contested in these proceedings. Her Honour wrote, at [20]:

As a matter of general principle a statute is to be construed in a manner that promotes the object or purpose of the legislation than one that would not: s 33 of the Interpretation Act 1987; Mills v Meeking (1990) 169 CLR 214 at 235. Further, the legislation is to be construed: according to its context so that it is consistent with the language and purpose of all of the provisions of the statutes; on the prima facie basis that its provisions are intended to achieve harmonious goals; and, where conflict appears to arise from the language of particular provisions such conflict must be alleviated, so far as possible, by adjusting the meaning of competing provisions to best give effect to the purpose and language of those provisions whilst also maintaining the harmony it is intended to achieve: Project Blue Sky v ABA [1998] 194 CLR 355 at [69]-[71].

57. As her Honour noted, the starting point for interpretation, in circumstances such as these, must necessarily be the oft-cited passage, at [69] to [71], of the plurality of the High Court in Project Blue Sky Project Blue Sky v ABA [1998] 194 CLR 355; [1998] HCA 28. The passage is in the following terms (footnotes omitted):

The 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. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "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". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

58. Whilst the High Court has also confirmed that, in appropriate circumstances, words can be imported by necessary implication, if the importation is necessary to give proper meaning and effect to construction of an instrument and where the necessary context requires the adding of the words, great caution is to be taken before adopting such a course. As the High Court said, in Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, at [37] and [38]:

Consistently with this Court's rejection of the adoption of rigid rules in statutory construction[63], it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia[64], the question of whether a construction "reads up" a provision, giving it an extended operation, or "reads down" a provision, confining its operation, may be moot[65].

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision[66]. It is answered against a construction that fills "gaps disclosed in legislation"[67] or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature"[68].

59. The position advanced by Ms Walker was that the present iteration of the Infrastructure SEPP itself provided several indicia that it was appropriate to read into cl 20B(2)(b) the implied words for which she contended. In this context, as I understood her, principal reliance was placed on cl 35, a provision in the same division of the SEPP as cll 34(8) and 37(2)(a), the combination of provisions rendering permissible solar voltaic arrays, as is here the subject of contest. Ms Walker relied on the opening element of cl 35, an element in the following terms:

35   Other development permitted with consent where electricity generating works permitted

If, under any environmental planning instrument (including this Policy), 

60. It was her submission that the presence of the words “(including this policy)” in this provision, when compared to the absence of those words in the contested provision, was a clear indicator that the legislative draughtsperson had not intended that the contested provision applied to the Infrastructure SEPP itself.

61. As was observed by Gibbs J in Cooper-Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, at [6]:

However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.

62. The answer to this constructional question lies in the plain and unambiguous words of cl 20B(2)(b) itself (although they are legally, as well as linguistically, unambiguous) and that those words require, for their sense, no forced insertion of the words proposed by Ms Walker to be imported – this being, in itself sufficient to dispose of the matter

63. In addition, in the structure of the Infrastructure SEPP itself, there are five other clauses that invoke the requirement for satisfaction with cl 20B. These are cll 26, 58C, 71C, 116A and 130. A close reading of each of these discloses no utility of, or necessity for, the importation of the words pressed by Ms Walker for addressing the Company’s solar voltaic array. If the words proposed to be read as if added, the sole function they would perform would be that proposed by Ms Walker in the provision here requiring consideration. The overall contextual reading of the instrument discloses no other support for such a forced reading.

64. The combination of these factors results in the absence of any necessity to read cl 20B as if the words proposed to be imported were so inserted. The summons must be dismissed.

Costs

65. In Class 4 proceedings such as these, costs ordinarily follow the event (Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 and Pt 42 r 1 of the Uniform Civil Procedure Rules 2005). There is nothing that has emerged during the course of these proceedings that would warrant departure from that position. At an appropriate level of generality, “the event” is the success of the Company in establishing the validity of the Complying Development Certificate issued pursuant to the Infrastructure SEPP (Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [39]).

66. The consequence is that, unless either party advises my Associate by close of business on 15 January 2020 that some other costs order is sought, it is appropriate to require the Council to pay the Company's costs as agreed or assessed.

67. As the Second Respondent has played no part in the proceedings, there is no necessity for any costs order involving him.

Orders

68. The orders of the Court are:

Noting the undertakings given by the Applicant and the First Respondent that:

1. the First Respondent will surrender the first Complying Development Certificate; and

2. the Applicant will forbear taking any action with respect to activities undertaken by the First Respondent in reliance on the first Complying Development Certificate:

1. The Summons is dismissed;

2. Unless a party advises my Associate by close of business on 15 January 2020 that that party wishes to be heard to propose some alternative costs order, the Applicant is to pay the First Respondent's costs as agreed or assessed; and

3. The Evidence Book and the Court Book are returned.

**********

Decision last updated: 06 December 2019