Nedoni Pty Limited v NSW Minister for Roads and Anor

[2004] NSWLEC 56

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Nedoni Pty Limited v NSW Minister For Roads And Anor [2004]  NSWLEC 56

PARTIES:
APPLICANT:
Nedoni Pty Limited

RESPONDENTS:
Minister For Roads And Anor

CASE NUMBER:     41046 of        2002

CATCH WORDS:     Injunctions and Declarations

LEGISLATION CITED:
Byron Local Environmental Plan 1988
Environmental Planning and Assessment Act 1979

CORAM:        Bignold J

DATES OF HEARING:        20-21/10/2003

DECISION DATE:    01/03/2004

LEGAL REPRESENTATIVES

APPLICANT:
Mr J Atkin, Barrister
SOLICITORS
Walters

RESPONDENTS:
Mr R Lancaster, Barrister
SOLICITORS
State Crown Solicitor

JUDGMENT:

IN THE LAND AND         Matter No. . 41046 of 2002

ENVIRONMENT COURT  Coram: Bignold J
OF NEW SOUTH WALES  1 March 2004

NEDONI PTY LIMITED

Applicant

v

NSW MINISTER FOR ROADS

First Respondent

NSW MINISTER FOR LAND AND WATER CONSERVATION

Second Respondent

JUDGMENT

A.           INTRODUCTION

1. By its amended class 4 application filed on 21 October 2003, the Applicant, being the owner of land comprising lot 2 in Deposited Plan 588653 and known as Nos 148-154 Jonson Street, Byron Bay (the subject land) seeks a mandatory order that either Respondent forthwith take action to acquire part of that land pursuant to written notice given by the Applicant to each Respondent requiring such acquisition pursuant to the provisions of the Byron Local Environmental Plan 1988, cl 43 (the LEP). The relevant part of the subject land is zoned “9(a) (Proposed Road)” by the LEP.

2. Each Respondent denies on several grounds or bases its liability to acquire that part of the subject land that is zoned 9(a) under the LEP.

B.           THE ASSERTED SOURCE of EITHER REPONSENT’S OBLIGATION TO ACQUIRE THE SUBJECT LAND

1. The exclusive source of the relevant obligation to acquire the subject land asserted against each of the Respondents (in the alternative) is the provisions of cl 43 of the LEP as in force when the relevant written notices requiring acquisition were given to each of the Respondents respectively—namely on 12 August 2002 (in the case of the first Respondent) and 15 November 2002 (in the case of the second Respondent).

2. An earlier acquisition notice had been given on 18 January 2002 to “the Commissioner for Main Roads” and “The Roads and Traffic Authority” at which time cl 43 was in force in a form different from its form when the written notices were respectively given to each of the Respondents.  (However, for the present time, I need not refer to the clause in it earlier form).

3. At the respective times when the written acquisition notices were given to each of the Respondents, cl 43 of the LEP provided as follows:

   43.      Acquisition of certain lands

   (1)This clause applies to land within Zone No 5(a), 6(a), 7(f1), 8(a) or 9(a).

   (2)The owner of any land shown on the zoning map as described below may, by notice in writing, require the public authority specified in respect of that land to acquire it:

   (a)within No Zone 5(a) (Special Uses Zone) and lettered Cemetery, Garbage Depot, Drainage, or Sewage Treatment Works – the council; or

   (b)within Zone No 5(a) (Special Uses Zone) and lettered Education or School – the Minister administering the Education Act 1990 (unless the land is reserved for private education); or

   (c)within Zone No 6(a) (Open Space Zone) – the council; or

   (d)within Zone No 7(f1) (Coastal Lands (f1) Zone) listed in Schedule 9 – the corporation constituted by section 8(1) of the Act; or

   (e)within Zone No 8(a) (National Parks and Nature Reserve Zone) – the Minister administering the National Parks and Wildlife Act 1974, or

   (f)within Zone No 9(a) (Proposed Road Zone) – the Minister administering the Roads Act 1993.

   (3)On receipt of such a notice, the public authority concerned is to acquire the land, subject to subclause (4).

   (4)The council need not take any action with respect to acquiring land within Zone No 5(a) (Special Uses Zone) or Zone No 6(a) (Open Space Zone) for 90 days (or for such other period as may be agreed between the owner and the council, within 14 days after receiving the notice, notifies the owner that it is reviewing the zoning of the land.  The council need not acquire the land pursuant to the notice if the land is rezoned, or the council serves notice on the owner that it has decided to prepare a local environmental plan to rezone the land, before the period of 90 days (or the agreed period) expires.

   (5)The council shall not be required to acquire land, the subject of a notice referred to in subclause (2), where the land is required to be dedicated to council as a condition of development consent or subdivision approval.

   (6)The Roads and Traffic Authority shall not be required to acquire land, the subject of a notice referred to in subclause (2), unless,

   (a)a development application has been made in respect of the land,

   (b)the development the subject of the development application consists of development for a purpose for which development could have been carried out o the land prior to the appointed day, and

   (c)the council has refused its consent to the development application on the basis that the Roads and Traffic Authority has not concurred in the development.

4. It may be deduced from the provisions of cl 43 of the LEP that the liability on the part of either Respondent to acquire that part of the subject land as is zoned “9(a) (Proposed Road Zone)” is predicated upon the existence, at the very least, of the following facts—

1. the land must be within one of the specified zones to which cl 43 applies—in this case the relevant zone is zone 9(a) (Proposed Road);

2. the owner of the land must have given notice in writing requiring the Respondent to acquire it;

3. the written notice must have been given to (and received by) the Respondent in his capacity as ‘Minister administering the Roads Act 1993”.

1. The parties’ competing submissions commonly accept the necessity for the foregoing facts to exist in order to enliven any liability to acquire land pursuant to cl 43.

2. In addition to those facts, the following facts may also have to exist—

1. a development application in respect of the land to carry out development for a purpose that was permissible development prior to the commencement of the LEP must have been made to, and been refused by, the Council on the basis that the Roads and Traffic Authority had not concurred in the development.

1. The parties’ competing submissions dispute the necessity for these additional facts—the Applicant contending that they are not an essential precondition to the enlivening and sustaining of the liability to acquire, and the Respondents contending that they are an essential precondition.  If it be held that the additional facts must exist, the parties are in dispute as to whether the Council’s refusal of the Applicant’s development application made in respect of the subject land was relevantly “on the basis that the Roads and Traffic Authority has not concurred in that development” (vide cl 43(6)(c)).

2. The potential relevance of cl 43(6)(c) of the LEP necessitates consideration of  cl 44 of the LEP which appears to be a related provision and which is in the following terms:

   (1)Land to which clause 43 applies may be developed for any purpose, with the consent of council, prior to its acquisition by the public authority concerned.

   (2)The council shall not grant consent to development referred to in subclause (1) on land within Zone No 9(a) unless it obtains the concurrence of the Roads and Traffic Authority.

   (3)In determining whether to grant concurrence under subclause (2), the Roads and Traffic Authority shall take into consideration:

(a)          the effect of the proposed development on the costs of acquisition,
(b)          the costs of reinstatement of the land for the purposes for which the land is to be acquired, and
(c)          the imminence of acquisition.
C.           THE RELEVANT FACTS

1. According to each Respondent’s separate Amended Points of Defence filed in response to the Applicant’s Points of Claim, the following relevant and potentially relevant facts are not disputed—

1. part of the subject land is within Zone “No 9(a) (Proposed Road)”;

2. the Applicant at all material times has been the owner of the subject land;

3. the Applicant has given each Respondent written notice pursuant to cl 43(2)(f) of the LEP requiring acquisition.

1. However, since each Respondent disputes the sufficiency and efficacy of the written notices respectively given to them to enliven the statutory obligation to acquire the relevant part of the subject land, it is necessary to recite the terms of the relevant notices.

2. The written notice given to the first Respondent by letter dated 12 August 2002 was in the following terms:

   NEDONI PTY LIMITED

   PROPERTY    LOT 2 DP 588653, 148-154 JONSON STREET, BYRON BAY:

   We are the Directors of Nedoni Pty Limited (Nedoni), the registered proprietor of all that piece or parcel of land in the Shire and Parish of Byron and County of Rous being Lot 2 in Deposited Plan 588653 known as 148-154 Jonson Street, Byron Bay.

   Under the Byron Local Environmental Plan 1988 (as amended) (BLEP) part of the above land is zoned 9(a) (Proposed Road Zone). Under Clause 43(2)(f) of the BLEP the owner of such land may, by notice in writing, require the Minister administering the Roads Act 1993 to acquire the land.

   On 9 August 2001 Nedoni through its agent, Aspect North, lodged with the Byron Shire Council a Development Application for proposed building extensions on the land (DA 10.2001. 141.1).

   On 31 October 2001 Byron Shire Council refused the Development Application on grounds including

   The concurrence of the Commissioner for Main Roads has not been obtained.

   Nedoni has satisfied the provisions Clause 43(5) of the BLEP in that:

   a)a development application has been made in respect of the land;

   b)the development the subject of the development application consists of a development for a purpose for which development could have been carried out on the land prior to the appointed day; and

   c)the Council has refused its consent to the development application on the basis that the Commissioner for Main Roads (sic) has not concurred with the development.

   In accordance with Clause 43(2) of BLEP we hereby serve notice on you in your capacity as Minister administering the Roads Act to acquire the land. We request that you take immediate steps to acquire the land in accordance with Clause 43(3) of BLEP.

   Please provide confirmation within 14 days that you have commenced the acquisition process.

3. A written notice in identical terms was given on 18 September 2002, being  addressed to “the Minister Administering the Roads Act” at Parliament House.  The Notice was enclosed in the letter of the same date to the same addressee from the Applicant’s Solicitor which included the following statement:

   We enclose Notice executed by our client requiring you to acquire part of the land in accordance with cl 43(2) of the Byron Local Environmental Plan”.

4. The Applicant’s Solicitors by letter dated 15 November 2002 addressed to the Minister for Land and Water Conservation enclosed copies of earlier correspondence passing between themselves and the Minister for Roads, the Minister Administering the Roads Act and the Roads and Traffic Authority. The copy correspondence to the Applicant’s Solicitors from both the Roads and Traffic Authority and the Minister for Roads had included advice to the effect that so far as concerned the written notice given pursuant to cl 43(2) of the LEP, the relevant Minister administering the Roads Act was the Minister for Land and Water Conservation, and it is apparent that the Applicant’s Solicitor acted upon that advice by sending copies of the relevant correspondence to the Minister for Land and Water Conservation.

5. The only evidence adduced of a response from the second Respondent was an e-mail communication from Peter Cusack, an officer of the second Respondent’s Department, to the effect that the Minister was not responsible for the administration of those provisions of the Roads Act relating to acquisitions of land by the Roads and Traffic Authority in respect of which matter “it was apparent that responsibility lies with the Minister for Roads”.

6. There is no dispute that the Byron Shire Council, on 31 October 2001, refused development consent to an application made on behalf of the Applicant to extend its existing “Mitre 10” hardware shop premises situate on that part of the subject land that is zoned “3(a) Business” onto that part of the land that is zoned “9(a)(Proposed Road)” for the following reasons—

   1.The proposal is not consistent with the objective of the 9(a) zone.

   2.The proposal is not considered to be in the public interest for the ratepayers of Byron Shire.

   3.The concurrence of the Commissioner for Main Roads has not been obtained.

   4.The construction of the proposed Byron Bay Town Bypass is pre-imminent.

   5.The proposed is prohibited pursuant to Clause 45 of BLEP 1988.

7. The Council’s “Evaluation Report” prepared in respect of the development application and employed in the Council’s delegate’s determination of the application, had included the following relevant statements—

   Byron Local Environmental Plan 1988

   Clause 9—Zone Objectives and development control table

   The subject site is located partly within Zone No 3(a)(Business) and partly in Zone 9(a)(Proposed Road Zone) under the provisions of Byron Local Environmental Plan 1988.

   The proposed extension to the building will be fully contained within that part of the site zoned 9(a) and to be acquired for town centre bypass.  The zone prohibits any form of development other than the purpose of the zone (an arterial road).

   Clause 44 of the LEP does however, allow for use of land pending acquisition.  It states as follows:

   44. (1) Land to which Clause 43 applies (being land within Zones 5(a), 6(a), 8(a) or 9(a) may be developed for any purpose, with the consent of Council, prior to its acquisition by the public authority concerned.

   (2) The Council shall not grant consent to development referred to in subclause (1) on land within Zone No 9(a) unless it obtains the concurrence of the Commissioner for Main Roads.

   (3) In determining whether to grant concurrence under subclause 92), the Commissioner for Main Roads shall take into consideration:

   a) The effect of the proposed development on the costs of acquisition;

   b) The costs of reinstatement of the land for the purposes for which the land is to be acquired; and

   c) The imminence of acquisition.

   The Proposal has not been referred to the Commissioner for Main Roads.  It is considered that the proposed structure will be of a permanent, rather than temporary nature.  The estimated cost of development is listed in the application as $600,000.  The costs of acquisition of the land by Council would significantly increase if a development of this magnitude were developed on the site.

   Additionally, given the pre-imminent nature of the construction of the towncentre bypass, and therefore the imminence of acquisition by Council, it is unlikely that the concurrence would be offered.  It is recommended that the proposal be refused on these grounds.

8. As at the respective dates upon which the Applicant had given written notice to the first and second Respondents requiring acquisition, the allocation of Ministerial responsibility for the administration of the Roads Act 1993 was, according to the relevant Government Gazette Notices notifying the Governor’s approvals of the administration of various Acts, divided among four Ministers—namely the Minister for Environment, the Minister for Land and Water Conservation, the Minister for Local Government and the Minister for Roads. The last mentioned Minister was allocated administration of the Roads Act except for those provisions specifically allocated to each of the other three Ministers. It is sufficient for present purposes to note that the following provisions of the Roads Act 1993 were allocated to the administration of the Minister for Land and Water Conservation:—

   Parts 2, 4 and 12 (Section 178(2) excepted) and section 148, and the remaining provisions of the Act so far as they relate to Crown roads (vide Government Gazette No 89 of 25 May 2001 and Government Gazette No 133 of 23 August 2002)

9. The Roads Act, Part 2 contains provisions dealing with the “opening of public roads”, Part 4 contains provisions dealing with the “closing of public roads” and Part 12 contains provisions dealing with the “acquisition of land”.

10. Part 12 includes s 177 which provides as follows:

    Power to acquire land generally

    (1)The Minister, the RTA or a council may acquire land for any of the purposes of this Act.

    (2)Without limiting subsection (1), the Minister, the RTA or a council may acquire:

    (a)land that is to be made available for any public purpose for which it is reserved or zoned under an environmental planning instrument, or

    (b)land that forms part of, or adjoins or lies in the vicinity of, other land proposed to be acquired for the purpose of opening, widening or constructing a road or road work.

    (3)Without limiting subsection (1), the RTA may also acquire land that it proposes to declare to be RTA development land.

11. On 2 April 2003, the administration of the Acts of NSW was re-allocated according to the Governor’s approval notified in Government Gazette No 67 of 2 April 2003.  Relevantly, the provisions of the Roads Act that had previously been allocated to the Minister for Land and Water Conservation were re-allocated to the joint administration of the Minister for Natural Resources and the Minister Assisting the Minister for Natural Resources (Lands).

12. At the hearing, the Applicant sought leave to amend the proceedings to substitute for the second Respondent the two Ministers currently vested with joint administration of specified provisions (including Part 12) of the Roads Act.  The Respondents, although not opposed to such amendments, invited me to defer the granting of the requisite leave until I had first determined whether the second Respondent was liable to acquire the Applicant’s land, upon the ground that there would be no utility in granting the amendment unless I had first held, contrary to the second Respondent’s case, that he was liable to acquire the land.

13. I was content to adopt that course of action.  (It is to be noted that the Applicant’s amendment assumes that if it be held that the second Respondent was bound to acquire the relevant land that obligation is now vested in the Ministers having the relevant joint administration.)

14. My overall factual findings in respect of relevant matters (both undisputed and disputed) can now be summarised as follows:

15. The Applicant at all material times was the owner of the subject land which comprises an existing lot in an existing deposited plan, namely lot 2 in Deposited Plan 588653.

16. Different parts of the subject land are differently zoned under the LEP.  One identifiable part of the subject land is, and always has been, zoned “9(a) (Proposed Road)” in terms of the LEP.   (In referring to an “identifiable” part, I am referring to the relevant sheet of the zoning map incorporated in the LEP which includes the subject land.  So far as the evidence is concerned, it appears that the precise dimensions of the part of the subject land that is included within Zone No 9(a) have not been surveyed and included in a separate plan of subdivision or otherwise precisely delineated.  However, the relevant part of the subject land is obviously capable of being precisely identified by a surveyor or cartographer).

17. The Applicant, as owner of the subject land, has given written notice pursuant to cl 43(2) of the LEP requiring each Respondent to acquire the land.  (Additionally, and I assume precautionarily the same notice had been given to the otherwise unparticularised “Minister Administering the Roads Act 1993”.)

1. Although arguably not expressly stated, it is implicit that the relevant notices require acquisition only of that part of the subject land as is included in Zone “No 9(a) (Proposed Road)”.

2. At the respective times that the notices were given, each of the Respondents was relevantly one of the several Ministers qualifying as “the Minister administering the Roads Act 1993”, although if attention is to be exclusively directed to the provisions of the Act dealing with the acquisition of land for road purposes, it is the second Respondent who alone qualifies as the Minister administering (those relevant provisions of) the Roads Act 1993.

3. To the extent that cl 43(6) of the LEP is relevant (and the Applicant disputes it application to the present case) prior to the Applicant giving each of the Respondents a written notice requiring acquisition, the Byron Shire Council had refused its consent to a development application made on behalf of the Applicant in respect of the subject land for a development (namely the extension of the existing shop premises) which was a permissible purpose of development that could have been carried out on the land prior to the commencement of the LEP (being relevantly the “appointed day”) where one of the five notified grounds or reasons for that refusal was that “the concurrence of the Commissioner for Main Roads has not been obtained”.  (This is a reference to the then current requirement of cl 44(2) of the LEP that the concurrence of the Commissioner was a prerequisite to the Council granting consent for the development of land to which cl 43 applies “for any purpose….prior to its acquisition by the public authority concerned”).  Both the Applicant seeking the consent and the Council in determining the development application had relied upon cl 44 of the LEP as the only possible source of permissibility of the proposal in view of the restrictions on development imposed by the 9(a) zoning.

4. It should be noted at this point that I have not included in my relevant findings of fact, any findings relevant to the case advanced by the Respondents that cl 43 of the LEP was invalid.  I shall later have to return to consider this aspect of the case.  For present purposes, I proceed firstly to consider the case on the basis that cl 43 is, ex facie, a valid provision of the LEP.

D.           THE RESPONDENTS’ CASE RESISTING THE RELIEF CLAIMED

1. Each Respondent disputes liability to acquire the Applicant’s land on numerous grounds which need to be separately considered.  They can be summarised as follows:

2. Neither Respondent is relevantly “the Minister Administering the Roads Act 1993” within the meaning of cl 43(2) of the LEP.

3. The written Notices given to each Respondent were invalid for uncertainty in failing to specify precisely what land was required to be acquired.

4. The obligation imposed by cl 43(2) of the LEP upon the relevant “Minister Administering the Roads Act 1993” was conditional upon fulfilment of the conditions specified in cl 43(6) of the LEP and the condition specified in cl 43(6)(c) has not been satisfied.

5. Clause 43(2) and (3) as introduced into the LEP on 12 May 2000 by Byron Local Environmental Plan 1988 (Amendment No 78) is invalid for uncertainty and/or unintelligibility .

6. Clause 43(2)(f) of the LEP was invalid because of relevant non-compliances in the preparation of the draft LEP (Amendment No 78) with (a) the requirements of cl 10 of the Environmental Planning and Assessment Regulation 1994 and (b) s 62 of the EP&A Act.

7. Clause 43(2)(f) of the LEP was ultra vires ss 26 and 27 of the EP&A Act.

8. The EP&A Act, s 35 did not preclude each of the Respondents’ challenges to the validity of cl 43 because the grounds or bases for those challenges were not comprehended by s 35.

9. Even if one or the other Respondent was held to be liable to acquire the land, the Court in the exercise of its discretion, would refuse the relief claimed.

10. It will be readily appreciated that each Respondent has argued its case on alternate bases—(i) upon the basis that cll 43(2)(f) and (3) of the LEP are valid provisions and (ii) upon the basis that they are not valid provisions.

11. The challenges to the validity of cll 43(2)(f)and (3) of the LEP are collateral challenges raised by each Respondent to the Applicant’s claim that each or either Respondent is bound to acquire its land pursuant to a statutory duty imposed by the LEP.  During the hearing, in response to my query that the local council responsible for administering the LEP and the Minister who made the LEP should be parties to the proceeding to the extent that the Respondents were collaterally challenging the validity of the LEP, Counsel for the Respondents informed the Court that the local Council had been informed of the proceedings and of each of the Respondents’ challenges to the validity of cl 43 and that the Attorney-General had authorised the Respondents raising the defences challenging the validity of the LEP, so that as between the relevant Ministers of State there was an awareness that two Ministers of the Crown were challenging the validity of the LEP which had been made by another Minister of the Crown.

12. Whereas I allowed the case to proceed and entertained the Respondents’ challenge to the validity of the LEP, upon further reflection, I do not consider that these submissions advanced by the Respondents overcome the problem created by the Respondents challenging the validity of the LEP in proceedings where neither the relevant Council nor the relevant Minister is a party to the proceedings when each clearly ought to be.

13. In these circumstances, I have determined on the following course namely if I were inclined to uphold the Respondents’ collateral challenges to the validity of the LEP, I would not thereupon hold the LEP to be partially invalid, without providing the local Council and the Minister with the proper opportunity to be heard on the question, and without requiring their joinder as parties (whether they were to actively participate or were to file submitting appearances).  This course will allow me to proceed to adjudicate upon the matter that was fully argued by the present parties, but if I am persuaded by the Respondents’ case my conclusion to that extent must initially be provisional.

Ground 1:  Neither Minister is Relevantly the Minister Administering the Roads Act 1993 within the meaning of cl 43(2) of the LEP.

1. Quite extraordinarily here the argument collectively advanced on behalf of the Respondents goes even further than their earlier mutual assertions (made to the Applicant’s Solicitors) that it was the other Minister who was the responsible Minister.

2. It was argued that the first Respondent was not relevantly “the Minister Administering the Roads Act 1993” as referred to in cl 43(2)(f) of the LEP because he was not the Minister to whom had been allocated the administration of the provisions of Part 12 of the Roads Act (“Acquisition of Land”).  Accordingly, since he lacked the statutory power under the Roads Act to acquire land, he could not be the relevant “Minister Administering the Roads Act 1993” as referred to in cl 43(2)(f) of the LEP.

3. This argument assumes, without demonstration, that cll 43(2) and (3) of the LEP do not create (i) a right in the land owner to require his lands be acquired and a (ii) correlative duty on the part of the relevant public authority to acquire, but rather only create a co-relative duty (in relation to the right to require acquisition) in circumstances where the relevant public authority already possesses aliunde the power to acquire land.

4. For my part, I would question the correctness of the assumption since, as a matter of construction there is no justification or mandate for qualifying the statutory duty to acquire which is clearly created by cll 43(2) and (3) of the LEP so that it only applies where the power to acquire is otherwise vested in the public authority upon whom the statutory duty is imposed.  Conventionally, the imposition of the statutory duty implies the conferral of the requisite power to fulfil that duty.

5. Moreover, it is to be recalled that any breach of the duty imposed by cll 43(2) and (3) is enforceable in proceedings brought pursuant to the EP&A Act, s 123—see Port Stephens Shire Council v Fidler (1997) 94 LGERA 298.

6. However, it is not necessary in the present proceedings for me to express a concluded view on the question since it is common ground that the second Respondent was at the relevant times vested with responsibility for the administration of provisions of the Roads Act, including Part 12 of that Act, and in the course of the hearing, the Applicant was content to accept that it is the second Respondent (and not the first Respondent) who is the Minister relevantly “administering the Roads Act” for the purposes of cll 43(2)(f), and (3) of the LEP.

7. However, on behalf of the second Respondent, it was boldly submitted that despite the second Respondent being charged with the administration of, inter alia, of the Roads Act, Pt 12, he was not relevantly “the Minister administering the Roads Act 1993”.  It was claimed that this conclusion was yielded by a “purposive construction” of cl 43(2)(f).  But with the greatest respect to the second Respondent, it was not explained how cl 43(2)(f), and more particularly, the expression “the Minister Administering the Roads Act 1993” are susceptible to a “purposive” construction or how such an approach to construction would yield any different result from that yielded by a literal construction of the expression.  The second Respondent sought to rely upon the affidavit sworn 30 July 2003 by John Francis Callaghan, senior legal officer in the employ of the Department of Lands and formerly employed as a senior legal officer of the Department of Land and Water Conservation.  His affidavit deposes to his knowledge and experience of the manner in which the Department of Land and Water Conservation and the responsible Minister administered various parts of the Roads Act 1993 (and its legislative antecedents) particularly in relation to “Crown Roads”.

8. However  informative the contents of Mr Callaghan’s affidavit may be, in respect of matters of departmental policy and administration, they cannot inform the proper construction of cl 43(2)(f) and (3) of the LEP. Indeed, those contents are in truth, entirely extraneous to the task of statutory construction. The expression appearing in cl 43(2)(f) “the Minister administering the Roads Act 1993” obviously means what it plainly states and it is an empty shibboleth to assert a “purposive construction” of the expression.  It means the Minister, having been allocated with responsibility for the administration of that Act in relation to the acquisition of lands for the purposes of the Roads Act.  That Minister is incontrovertibly the second Respondent and the argument to the contrary is simply untenable.

9. The arguments collectively advanced on behalf of the Respondents, although at pains to disclaim that either Respondent is relevantly “the Minister administering the Roads Act 1993” significantly proffer no other suggestion as to how the relevant expression is to be construed.  The logical force of the Respondents’ collective argument is that there is no meaning to be given to the statutory expression which is therefore reduced to a meaningless reference.  This is itself an absurd and unjust result.

10. Accordingly, I hold that the Respondents’ argument that the first Respondent is not relevantly “the Minister administering the Roads Act 1993” is arguably correct but the Respondents’ argument that the second Respondent is not relevantly the Minister Administering the Roads Act 1993” is unarguably incorrect.

11. This ground for denying liability fails.

Ground 2: The Applicant’s Notice Requiring Acquisition is Void for Uncertainty

1. Each Respondent submitted that the notices given to each of them by the Applicant was void for uncertainty “because they did not identify the land required to be acquired with sufficient certainty” and that “(I)t was not clear from each notice whether the Applicant sought the acquisition of all of its land or only of that part of the land zoned 9(a)”.

2. In my judgment, these submissions are wholly lacking in substance and must be rejected.

3. I have earlier set forth the relevant terms of the written notice requiring acquisition.  Whereas those terms refer to the fact that the Applicant owns the land known as “lot 2 in Deposited Plan 588653 known as 147-154 Johnson Street, Byron Bay” (the first paragraph of the Notice), the notice recites that “part of the above land” is zoned 9(a) (Proposed Road Zone) under the LEP and cl 43(2)(f) of the LEP entitles the owner of “such land” by notice in writing, to require the Minister administering the Roads Act 1993 to acquire “the land” (the second paragraph of the Notice).

4. The request for acquisition contained in the Notice is stated to be given “(I)n accordance with cl 43(2) of the LEP” and the Minister is requested to take “immediate steps to acquire the land in accordance with cl 43(3) of the LEP”.

5. Properly construed, the Notice comfortably satisfies the requirements of cl 43(2)(f).  There is in truth, no ambiguity (patent or latent) concerning the identification of the land to be acquired, namely that part of lot 2 in Deposited Plan 588653 that is zoned “9(a) (Proposed Road)” by the LEP.

6. I so conclude, notwithstanding that the precise dimensions of the relevant part of lot 2 in Deposited Plan 588653 that is so zoned were not specified in the Notice (otherwise than by reference to the 9(a) zoning of part of that lot).

7. This is because the precise dimensions are readily capable of ascertainment by reference to the zoning map forming part of the LEP which shows in cadastral detail (albeit at the scale of 1:10,000) the physical extent of Zone No 9(a) (Proposed Road), including its extent in respect of lot 2 in Deposited Plan 588653.  That lot contains an area of 3,576 m2 and the part of that area included with Zone No 9(a) would appear from visual inspection of the relevant sheet of the Zoning Map to be approximately 30 per cent, but precise delineation would obviously require some surveying or cartographic input.

8. Within the context of the LEP and of cl 43(2)(f) in particular, I hold that the Notice is legally and factually sufficient and certain in its description of the land required to be acquired as being “that part of lot 2 in Deposited Plan 588653 that is zoned 9(a) (Proposed Road)” by the LEP.

9. This ground for denying liability fails.

Ground 3: Non-fulfilment of the Condition Stipulated in cl 43(6)(c) of the LEP

1. The terms of cl 43(6)(c) have been earlier recited.  The Respondents submit that the relevant condition specified therein has not been satisfied in the present case for two separate reasons—

1. Properly construed, the condition stipulated in cl 43(6)(c) of the LEP requires the “non-concurrence” by the Roads and Traffic Authority to be an actual decision by that body not to concur in the proposed development.  No such decision was made in the present case because the Roads and Traffic Authority was not consulted by the Council which determined the Applicant’s development application without any reference to the Roads and Traffic Authority and accordingly, without that Authority having been given the opportunity to make a decision as to whether it did, or did not, concur in the proposed development.

2. Properly construed, the condition stipulated in cl 43(6)(c) of the LEP requires the refusal by the Council of consent to the development application to be “on the basis” that the Roads and Traffic Authority has not concurred in the development.  The Council’s refusal of the development application was not “on the basis” that the Roads and Traffic Authority had not concurred in the development because that requisite concurrence had not been obtained was but one of the five stated grounds or reasons for the Council’s determination refusing consent to the Applicant’s development application.

1. Although the Applicant asserts relevant compliance with the conditions imposed by cl 43(6) of the LEP its primary argument is that cl 43(6) is not relevant to its statutory right to require either Respondent to acquire its land and the correlative duty of either Respondent to acquire that land, because the express terms of cl 43(6) only refer to “the Roads and Traffic Authority”.  They do not refer to “the Minister administering the Roads Act 1993” and accordingly they do not qualify the duty imposed by cl 43(3) of the LEP upon the relevant Minister to acquire land upon receipt of a relevant acquisition notice.

2. In its express terms, obviously cl 43(6) does not apply to “the Minister administering the Roads Act 1993” and accordingly, textually does not qualify the duty to acquire imposed upon the Minister by cl 43(3).

3. But the Respondents submit that if cl 43(6) is construed according to its terms, the result would be to deprive the provision of any effect since the Roads and Traffic Authority is not a “public authority” that is specified in subclause (2).

4. Accordingly, the Respondents submit that it is necessary to construe cl 43(6) purposively and that interpretive approach is strongly supported by consideration of the legislative history of cl 43 which shows that originally the LEP had nominated the “Commissioner for Main Roads” as the public authority responsible of the acquisition of land included in Zone No 9(a) reserved for use as “Arterial Roads”.  In its original form, cl 43(5) was in identical terms to cl 43(6) (as currently in force and so in force when each Respondent received the Applicant’s acquisition notices) except that instead of reference to the “Roads and Traffic Authority” (as currently appears in cl 43(6)), the reference was to “the Commissioner for Main Roads”.

5. The clear effect of the original cl 43 in relation to the duty imposed upon the Commissioner for Main Roads was that his duty to acquire land upon receipt of an acquisition notice was qualified by cl 43(5) in the sense that unless the conditions therein stipulated were fulfilled, he was not required to acquire the land, despite receipt of the written acquisition notice from the land owner.

6. It was upon the coming into force on 12 May 2000 of LEP (Amendment No 78) when the original cll 43(2) and (3) were repealed and replaced by substitute provisions that the “Commissioner for Main Roads” ceased to be the public authority nominated for the acquisition of land reserved for “Arterial roads” and instead “the Minister administering the Roads Act 1993” became the nominated public authority for the acquisition of “land within Zone No 9(a) (Proposed Road Zone)”.  However, that Amendment to the LEP left textually untouched, and prima facie still in force, subclause (5).

7. When LEP (Amendment No 90) came into force on 22 March 2002 it amended cl 43 by omitting reference to “The Commissioner for Main Roads” and substituting reference to “the Roads and Traffic Authority”, but except for these amendments (which were also expressly extended to the same references appearing in cl 44) there was no amendment made to cll 43(6) or 44 to bring either of those provisions into alignment with the fact that the nomination by cl 43(2) of public authorities variously responsible for land acquisitions no longer included “the Commissioner for Main Roads” or “the Roads and Traffic Authority” but relevantly included “the Minister administering the Roads Act 1993”.

8. Accordingly, it was submitted on behalf of the Respondents that a purposive construction of cl 43(6) aided by reference to the legislative history would yield a meaning of cl 43(6) to the effect that it qualified the duty imposed upon the “Minister administering the Roads Act 1993” in the same way that upon the original making of the LEP cl 43(5) qualified the duty then imposed upon the Commissioner for Main Roads to acquire lands reserved for “Arterial Roads”.  To yield that outcome it would be necessary, according to the Respondents’ submissions to read the first reference to “the Roads and Traffic Authority” appearing in cl 43(6) as if it were a reference to “the Minister administering the Roads Act 1993” and the second reference to the “Roads and Traffic Authority” appearing in cl 43(6) as correctly referring to that body.

1. In my opinion, there are considerable difficulties in the path of accepting the Respondents’ submissions and some of these difficulties are raised by considerations of the legislative history other than those referred to in the Respondents’ submissions.  For example, no explanation is offered in respect of the fact that when LEP (Amendment No 78) amended cl 43(2), it substituted specified Ministers of the Crown as the “public authorities” responsible for land acquisitions for the previously nominated Government Departments or Department Heads.  (Byron Shire Council has constantly remained a relevant “public authority”).

2. Given the unexplored significance of this deliberate change to cl 43(2) in respect of the nomination of relevant public authorities, it is not compellingly apparent why the ongoing reference in cl 43(5) of the LEP to “the Commissioner for Main Roads” should be understood as a mistaken or outmoded reference for “the Minister administering the Roads Act 1993”.  Moreover, even if it were the case that the ongoing reference in cl 43(5) to “the Commissioner for Main Roads” was originally an oversight when LEP (Amendment No 78) was made in May 2000, how is it that that oversight is to be taken to have continued when two years later LEP (Amendment No 90) deliberately amended cl 43(5) and cl 44 by substituting for the then existing anachronistic references to “the Commissioner for Main Roads” references to the “Roads and Traffic Authority”?  Whatever be the reason, it cannot be said that the operation of cl 43(5) (renumbered cl 43(6) by LEP (Amendment No 90) was simply not  adverted to, and hence, was unintentionally overlooked.

3. Of course I recognise the possibility that the only advertence to cl 43(5) and cl 44 was in respect of their anachronistic references to “the Commissioner for Main Roads” and that the draftsman was simply eliminating that anachronism by substituting reference to the “Roads and Traffic Authority” (which in effect is what had occurred upon the coming into force of the Transport Administration Act 1988 which simultaneously abolished the corporation comprising the Commissioner for Main Roads and created the NSW Roads and Traffic Authority).  But such possibility simply recognises the inherent risks of seeking to derive interpretive certainties from the legislative history of c 43 of the LEP based upon legislative mistake or oversight.

4. In the result, recourse to the legislative history of cl 43 yields, at the very least, countervailing, if not competing, suggestions and intimations to those urged by the Respondents, and provides an entirely inadequate basis for concluding, as a matter of construction that the first (but not the second) reference to “the Roads and Traffic Authority” appearing in cl 43(6) is to be taken to be an unintended mistake which may readily be corrected in the process of statutory construction by taking it to be a reference to the “Minister administering the Roads Act 1993”.

5. The Respondents’ appeal for the adoption of a purposive construction of cl 43(6) in order to avoid depriving the provision of any effect whatsoever, is undermined by the fact that cl 43(6) will have effect, if and when, the Roads and Traffic Authority were to be nominated by cl 43(2) as a relevant public authority, as had been its predecessor the Commissioner for Main Roads from 1988 when the LEP originally came into force until 2000 when LEP (Amendment No 78) came into force.  Moreover, it is important to recognise that cl 43(6) operates as a qualification  on the statutory duty to acquire upon receipt of an acquisition notice, and that duty should not be avoided by obscurities confounding the qualification.

6. But in any event, to submit, as do the Respondents, that the purpose of cl 43(6) is to qualify the duty imposed by cl 43(2) upon the Minister administering the Roads Act 1993 is in truth, not the result yielded by a purposive construction, because it merely posits or assumes, that cl 43(6) is intended to apply to the Minister administering the Roads Act 1993 when, according to its plain terms, it does not so apply.  It has not been demonstrated that the first of the double references in cl 43(6) to the “Roads and Traffic Authority” is so obviously a legislative slip or is an obviously misdirected reference, as to justify in the process of statutory construction, a reading of the first of those two references as if it were intended to refer to the Minister administering the Roads Act 1993.

7. In so concluding, as a matter of construction, that cl 43(6) does not apply to the duty to acquire imposed upon Minister administering the Roads Act 1993 it is not necessary that I conclude, as the Applicant has submitted, that cl 43(5) (renumbered as cl 43(6) by LEP (Amendment No 90) was an unintended leftover and spent provision following the amendments made to cl 43(2) by LEP (Amendment No 78) which included removing “the Commissioner for Main Roads” from the list of nominated “public authorities” having various responsibilities for land acquisitions.  That of course remained a possible and plausible explanation for the retention of cl 43(5) following the coming into force of LEP (Amendment No 78) but that explanation loses force and conviction when regard is had to the subsequent fact  that LEP (Amendment No 90) included express amendments to cl 43(5) (which it renumbered as cl 43(6)) that I have previously discussed.

8. The preferable view of cl 43(6) is that it operates according to its terms, albeit contingently in the sense that it will not operate whilever the Roads and Traffic Authority is not included in the list of public authorities nominated by cl 43(2) but it will operate if and when that Authority is so nominated.  The adoption of this approach to cl 43(6) leaves unimpaired the full operation of cl 44 of the LEP (which confers a concurrence function upon the Roads and Traffic Authority in respect of proposed developments within Zone No 9(a)).

9. However, lest I be wrong in so concluding that cl 43(6) does not apply to the duty to acquire imposed upon “the Minister administering the Roads Act 1993” and assuming that it does apply so as to qualify the duty imposed by cl 43(2) upon the Minister administering the Roads Act 1993, I should proceed to adjudicate upon the disputed issue whether the condition stipulated in cl 43(6)(c) of the LEP has been fulfilled in the present case.

10. At this point, the dispute between the parties is focussed on the true meaning of cl 43(6)(c) and its application to the undisputed relevant facts, namely that the Council refused consent to the Applicant’s relevant development application on five stated grounds, including the ground “The concurrence of the Commissioner for Main Roads has not been obtained”, in circumstances where the Council did not consult the Roads and Traffic Authority (being the successor to the Commissioner for Main Roads) but in its decision-making process reasoned that “it is unlikely that the concurrence would be offered”.

11. I have earlier stated the Respondents’ arguments in support of its submission that the condition stipulated in cl 43(6)(c) of the LEP had not been fulfilled in the present cases, namely that the fulfilment of the condition required—

1. the actual decision of the Roads and Traffic Authority “not to concur in the development”; and

2. the Council’s decision refusing development to “be based upon” the fact that the Authority had not concurred in the development.

1. The Applicant’s competing argument disputes the Respondent’s construction of cl 43(6)(c).

2. Firstly, the Applicant submits that the meaning and operation of cl 43(6)(c) and cl 44(2) of the LEP are to be understood in the light of the express provisions of the EP&A Act relating to the “concurrence” function in respect of development applications.  Particular reliance is placed upon the EP&A Act, s 79B(1) which provides as follows:

   If, by an environmental planning instrument, the consent authority, before determining the development application, is required to consult with or to obtain the concurrence of a person, the consent authority must, in accordance with the environmental planning instrument and the regulations, consult with or obtain the concurrence of the person, unless the consent authority determines to refuse to grant development consent.

3. The conditional clause at the end of that section makes it clear that a consent authority is relieved of any obligation to consult and obtain the concurrence of a specified person, if the consent authority “determines to refuse to grant development consent”.

4. In the light of the EP&A Act, s 79B(1) and the fact that cl 44(2) forbids the Council, (as consent authority) from granting development consent under cl 44(1) “unless it obtains the concurrence of the Roads and Traffic Authority”, the Applicant submits that the fulfilment of condition stipulated in cl 43(6)(c) of the LEP does not require the Roads and Traffic Authority to refuse or decline concurrence.  Rather, the Applicant submits that the fact of non-concurrence is sufficiently established if the Council refuses development consent without consulting with the Roads and Traffic Authority, and that the statutory condition is sufficiently fulfilled in such circumstances where the Council’s refusal is based upon the fact of that non-concurrence.

5. In short, the Applicant argues that the fact of the Roads and Traffic Authority’s non-concurrence is established by the Council’s decision to refuse consent to the development application for reasons which included the fact that the concurrence of the Roads and Traffic Authority had not been obtained, without, conformably to s 79B(1), the need for any consultation by the Council with the Authority.

6. The Applicant next submits that cl 43(b)(c) properly construed does not require the Council’s decision refusing development consent to be based solely upon the fact that the Roads and Traffic Authority has not concurred in the development.  Rather, what is required is that the fact of non-concurrence be a basis for the Council’s decision and that fact is satisfied in the present case by one of the stated reasons of grounds for the Council’s decision being “The concurrence of the Commissioner for Main Roads has not been obtained”.

7. In my opinion, the proper meaning of cl 43(6)(c), (and indeed of the whole of subclause (6)) is obscure.

8. However, it is clear that subclause (6) is intended to operate to relieve the relevant public authority from its obligation to acquire the relevant land upon receiving a written acquisition notice.  (For present purposes, I am proceeding on the assumption, contrary to my holding, that subclause (6) applies to the duty to acquire that is imposed upon the Minister administering the Roads Act 1993.)  What is not so clear are the particular mechanisms or elements that comprise the statutory condition.  This is particularly the case in respect of the content of par (b) of subclause (6), namely that the relevant development be “for a purpose for which development could have been carried out prior to the appointed day”.

9. How, it may be asked rhetorically, can the statutory planning situation that existed “prior to appointed day” (ie prior to the commencement in 1988 of the LEP) have any relevance to the application of the LEP in circumstances where the 9(a) zoning created by the LEP prohibits, by virtue of cl 9(2), development within that Zone for any purpose other than the following very restrictive purposes:

   bushfire hazard reduction;

   arterial roads; (in the case of land to be acquired for the purpose of arterial roads); and

   drainage; local roads, recreation areas; utility installations (in the case of land to be acquired for the purpose of local road widening).

10. Since there can be no suggestion that cl 43(6) is an empowering provision it would follow that standing by itself, the provision would be meaningless, because it would be inconceivable that a statutory condition operating as a qualification on the statutory  duty to acquire could be founded upon a legal impossibility—namely that a development application to carry out absolutely prohibited development would be processed to the point of its determination on its planning merits:  See the definition of “development application” in the EP&A Act, s 4(1) and Chambers v Maclean Shire Council (2003) 126 LGERA 7 at 16. However, cl 43(6) does not stand alone and it is apparent, as I have earlier suggested, that cl 43(6) is essentially linked with cl 44 so that it is only via the operation of the latter provision that cl 43(6) has any meaningful effect.  Thus, cl 43(6) only operates in respect of a development application that may be approved by the Council conformably to cl 44(1) and cl 44(2), since cl 44 is clearly an empowering  provision in respect of development proposed for lands “to which cl 43 applies” and its empowering effect overrides the controls imposed by cl 9(2) (the Zoning Table) which are expressed to operate “Except as otherwise provided by this plan”.

11. The question that arises concerns the true ambit or extent of the empowering provisions contained in cl 44.  In one sense, the empowering provision is very extensive “land….may be developed for any purpose”:  subclause (1).  However, this apparent breadth (“any purpose”) is expressly limited by the phrase “prior to its acquisition by the public authority concerned”.  The phrase does more than impose a temporal limitation on when such development may occur (ie the land may be developed for any purpose “prior to its acquisition….”).  In my opinion, additionally the phrase imposes an implied limitation on the duration of the existence of any such development and hence, ultimately on the nature of any such development.  This implied limitation is reinforced by the heading to the clause “Use of land pending acquisition” and particularly in the case of land within Zone 9(a) where the concurrence of the Roads and Traffic Authority must be obtained to any such development (vide subclause (2)), by virtue of the express relevant considerations governing the grant or refusal of the requisite concurrence. These considerations are all concerned with the relationship between the proposed development and the public acquisition of the land (vide subclause (3)) and they contemplate a development of the land for a temporary and appropriate purpose pending the acquisition of the land by the relevant public authority. In the case of land within Zone No 9(a), but for no other land to which cl 43 applies, this limitation is reinforced by the requirements for obtaining the concurrence of the Roads and Traffic Authority, where the concurrence function is required to be exercised by reference to criteria concerning the acquisition of the land for its public purpose.

12. What I have held concerning the ultimately limited extent of the empowering provision contained in cl 44 appears to reflect the understanding of the provision that was adopted by the Byron Shire Council in its Evaluation Report in respect of the Applicant’s proposed development (of extending the existing shop premises onto that part of the subject land zoned 9(a)), the relevant passages from which Report I have earlier recited (see paragraph 18).

13. Having regard to what I have held to be the true meaning of cl 43(6) and cl 44 of the LEP, it would follow that the condition stipulated by cl 43(6) is only enlivened in circumstances where the proposed development truly falls within the scope of the limited empowering provision contained in cl 44.  So understood on the undisputed facts, the Applicant’s development application, the subject of the Council’s refusal could not reasonably be held to fall within the true ambit of cl 44 because it proposed a permanent building at a cost of $600,000 being erected on land within Zone No 9(a) and which is set aside by cl 9(1) of the LEP for “proposed roads”.

14. However, because the parties’ competing cases on the question whether the statutory condition has been fulfilled have not been advanced on the basis of such an interpretation of cl 43(6) and despite my preference to interpret cll 43(6) in the manner that I have outlined, I should, in the circumstances assume that its meaning is not so confined, and that meaning is relevantly attracted by the facts of the present case, concerning the Council’s refusal of consent to the Applicant’s development application.

15. The Respondents’ submission that there can be no fulfilment of the statutory condition unless the relevant  non-concurrence of the Roads and Traffic Authority arises from the actual decision of that Authority not to concur in the proposed development so emphasises or elevates the concurrence function as if the element of the statutory condition expressed in cl 43(6)(c) were simply that the Roads and Traffic Authority had not concurred in the proposed development.  But that is not what the text provides as an element of the statutory condition According to the text, the relevant element of the statutory condition is the fact that the Council has refused development consent to the proposed development on the basis that the Roads and Traffic Authority has not concurred in that development.

16. In the context of the LEP and the EP&A Act generally (and of cl 44 and s 79B(1) in particular) the element of the statutory condition provided by cl 43(6)(c) does not confine the non-concurrence of the Roads and Traffic Authority to those cases where the Authority actually decides not to concur in the development.  Rather, the text of cl 43(6)(c) also accommodates a case (such as the present) where the Council’s refusal of development consent is required as a matter of law because the requisite concurrence has not been obtained.  This interpretation harmonises the operation of cl 43(6)(c) with the existence of (i) the express prohibition wrought by cl 44(2) on the Council granting development “unless it obtains the concurrence of the Roads and Traffic Authority” and (i) the statutory warrant provided by s 79B(1) that consultation with the requisite concurrence is not required “where the consent authority determines to refuse development consent”.

17. However, cl 43(6)(c) does require the Council’s decision to refuse development consent to be relevantly “on the basis that the Roads and Traffic Authority has not concurred in the development”.  Does this requirement mean “solely” on the basis of the fact of non-concurrence as contended by the Respondents?  I do not think that it is legitimate to import the qualification “solely” into the statutory language, especially in the context of the determination by a consent authority of a development application under the EP&A Act, s 79C (a function described as “multi-functional decision-making and complex” by Mason P in Weal v Bathurst City Council (2000) 111 LGERA 181 at 186).

18. Rather, the statutory requirement that the Council’s refusal of development consent be “on the basis of” the fact of non-concurrence by the Roads and Traffic Authority would be satisfied if the fact of non-concurrence were a real and substantial reason (but not necessarily the only reason) for the Council’s decision.  Do the facts concerning the Council’s decision refusing development consent satisfy this requirement?  I think so, not only because one of the stated grounds expressly states that the requisite concurrence has not been obtained but a consideration of the Council’s Evaluation Report supports a finding (which I make) that four of the five reasons for the Council’s refusal of development consent touch and concern the requirement for the concurrence of the Roads and Traffic Authority to be obtained.

19. Moreover, it may be noted that in a fundamental legal sense, the Council, unless it obtained the requisite concurrence, was forbidden by cl 44(2) from granting development consent.

20. The Respondents urged a purposive construction of cl 43(6)(c) upon the ground that the clear purpose of cl 43(6) was to qualify the duty to acquire land zoned 9(a) upon receipt of a land acquisition notice given by the owner by requiring the existence of a development application to carry out development on the relevant land which application has been refused by the Council on the basis that the Roads and Traffic Authority had not concurred in the development.

1. But the apparent purpose of cl 43(6) in the context of cll 43 and 44 is that before the owner of land within Zone No 9(a) can enforce the right to have the land publicly acquired, he must first have sought, but failed to obtain, development consent for the carrying out of development on the subject land, where the refusal of development consent was based upon the non-concurrence by the Roads and Traffic Authority in the development.

2. Accordingly, the purpose of cl 43(6) is not primarily to enable the Roads and Traffic Authority to avoid or postpone the statutory duty to acquire relevant lands required to be acquired.  Rather, it is to require the owner of the land desirous of having his land publicly acquired to have first sought, but failed, to obtain, the requisite development consent which could only be granted conformably to cl 44(2) with the concurrence of the Roads and Traffic Authority.

3. For all the foregoing reasons, and on the assumption that cl 43(6) applies to the duty imposed upon the relevant Minister to acquire the Applicant’s land, I would hold that the condition stipulated in cl 43(6)(c) has been fulfilled in the present case.

4. This ground for denying liability fails.

Ground 4:  cll; 43(2) and (3) as introduced by LEP (Amendment No 78) is invalid for uncertainty and/or unintelligibility

1. LEP (Amendment No 78), which came into force on 12 May 2000 amended the LEP by omitting cl 43(2), 2(a) and (3) and by inserting instead new subclauses (2), (3) and (4).

2. Those new subclauses were inserted substantially in the form in which they existed when the Applicant gave its acquisition notices to each of the Respondents (ie in the form recited in paragraph 5 of these reasons).  I say “substantially” because of the drafting changes made by Amendment No 90 to cl 43 (which changes are not material for present purposes).

3. One consequence of the amendments made to cl 43 by LEP (Amendment No 78) was that there were two provisions each numbered subclause (4), namely the subclause inserted by Amendment No 78 and the existing subclause (4).  That existing subclause (4) was renumbered subclause (5) by LEP (Amendment No 90) which came into force on 22 March 2002 and is in the form recited in paragraph 5 of these reasons.

4. The Respondents submit that the amendments to cl 43 made by Amendment No 78 are invalid for uncertainty and/or unintelligibility.  In support of this submission, the Respondents rely upon the following two features of cl 43 as amended by Amendment No 78—

1. there existed two subclauses (4) which meant the reference to subclause (4) in subclause (3) imposing the statutory duty to acquire “subject to subclause (4)” was left in an uncertain state; and

2. subclause (5) which was not textually touched by Amendment No 78 continued to refer to the “Commissioner for the Roads” when by virtue of Amendment No 78, he had ceased to be a nominated public authority with responsibility to acquire land within Zone 9(a) reserved for “Arterial roads”.

1. In my judgment, these features did not have the effect of rendering cl 43 as amended by Amendment No 78 uncertain.  Far less did these features render the clause, as amended, invalid for uncertainty since “there is no legal principle that makes certainty as such a requirement of subordinate legislation” per Gleeson CJ in Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 42 citing the judgment of Sir Owen Dixon in King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 194-195 which includes the following statement:

   I am unaware of any principle of law or of interpretation which places upon a power of subordinate legislation….a limitation or condition making either reasonableness or certainty indispensable to its valid exercise.

2. The fact that as a result of Amendment No 78, cl 43 had two separate subclauses each numbered (4) created no uncertainty, especially when it is appreciated that each provision qualified the duty to acquire that was imposed upon the Council.  Clearly, both provisions numbered subclause (4) had effect as substantive provisions and the fact that each bore the same number, neither impaired their separate substantive effect, nor created uncertainty for the meaning of subclause (3) which imposed upon the relevant public authority the duty to acquire “subject to subclause (4)”.

3. As to the continuing reference to “the Commissioner for Main Roads” contained in subclause (5) which was not touched by Amendment No 78, I have said all that needs to be said of that subclause when earlier considering the legislative history of cl 43.  Clearly, and for the reasons given, its continuing existence did not create uncertainty in the meaning and effect of cl 43.

4. This ground for denying liability fails.

Ground 5:  cl 43(2)(f) is invalid because of statutory non-compliances in the preparation of Amendment No 78

1. The Respondents allege that in the preparation and making of Amendment No 78, there were relevant non-compliances with the duty to consult public authorities etc imposed by the EP&A Act, s 62 and with the Environmental Planning and Assessment, Regulation 1994, cl 10,.  The relevant alleged non-compliances were (i) the failure to inform either of the Respondents of a proposal to include within Amendment No 78 any provision like cl 43(2)(f), which nominated the “Minister administering the Roads Act 1993” as the public authority responsible for acquiring lands within Zone 9(a); and (ii) the failure of the Council to obtain the concurrence of the relevant Minister to the inclusion of cl 43(2)(f).

2. In my judgment, the Respondents’ case of invalidity of cl 43(2)(f) based upon these alleged non-compliances has not been established.

3. Firstly, in respect of the alleged non-compliance with s 62, I have not been persuaded by the evidence that such non-compliance occurred.  Although the evidence is sketchy, the documentary materials make it tolerably clear that the amendments made by Amendment No 78 to subclause (2) (including paragraph (f) of that subclause) did not emerge until after the public exhibition of draft Amendment No 78 and after the Council’s consideration of submissions.  This means that when the draft Amendment No 78 was publicly exhibited pursuant to the EP&A Act, s 66, it did not contain any amendments to cl 43(2) of the LEP.

4. This is of crucial relevance to the duty imposed by the EP&A Act, s 62 which the Respondents allege to have been relevantly not complied with by the Council.  That provision relevantly provides:

   In the preparation of a draft local environmental plan, the council shall consult with:

(a)          such public authorities or bodies….as, in its opinion, will or may be adversely affected b that draft local environmental plan……

1. Since the amendments to cl 43(2) made by Amendment No 78 emerged for the first time after the public exhibition of the draft Amendment, it is apparent that the Council altered the draft plan during the s 68 stage of the plan-making process, which occurs well after the consultation process required by s 62.

2. The Council’s power to make any alterations to a draft local environmental plan are conferred b s 68(3) and (3A) which provide as follows:

   (3)The council shall consider the submissions and the report furnished pursuant to subsection (2) and may make any alterations it considers are necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing.

   (3A)An alteration made by a council pursuant to subsection (3) need not relate to a submission.

3. It is important to note that s 68(3B) gives the Council the power (but not the obligation) to publicly exhibit a draft local environmental plan that has been altered pursuant to subsection (3) and that the Minister, in his consideration of the Council’s draft plan, is vested with a similar power to require a further public exhibition—see s 70(3).

4. The documentary evidence does not reveal any further exhibition of the altered draft Amendment No 78.

5. Having determined, according to the documentary materials in evidence, that the amendments made by Amendment No 78 to cl 43(2) did not come into existence until after the draft Amendment No 78 had been publicly exhibited and occurred during the Council’s processing of the draft plan following the public exhibition, it necessarily follows in my judgment that there has been no breach of s 62 because the duty to consult created by that provision had been spent prior to the coming into existence of any proposed amendment to cl 43(2).  (In passing, I should note that the documentary evidence discloses that in the preparation of the draft Amendment No 78, the Council did consult with several public authorities, including the Department of Land and Water Conservation and the Roads and Traffic Authority).

6. In respect of the Respondents’ allegation of non-compliance by Amendment No 78 with the requirements of the Environmental Planning and Assessment Regulation 1994, cl 10, it is to be noted that that Regulation, as in force when Amendment No 78 was made, provided as follows:

   Public authorities must concur to proposed reservation of land

   10.  A local environmental plan or draft local environmental plan:

   (a) may not contain a provision reserving land for a purpose referred to in section 26(c) of the Act; and

   (b) may not contain a provision in respect of that reservation as required by section 27 of the Act,

   unless the public authority responsible of the acquisition of the land has notified the council of its concurrence to the provision being included.

7. The EP&A Act, s 26(c) and s 27 relevantly provide as follows:

   26       Contents of environmental planning instruments

   (1)Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following:

   (c)reserving land for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993, a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974, a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose for the purposes of this section

   27       Reservation of land for public purposes

   (1)Where an environmental planning instrument reserves land for use exclusively for a purpose referred to in section 26 (1) (c), that environmental planning instrument shall make provision for or with respect to the acquisition of that land by a public authority unless the land is owned by a public authority and is held by that public authority for that purpose.

   (2)Nothing in this section shall be construed as authorising or requiring an environmental planning instrument to contain a provision empowering or purporting to empower the compulsory acquisition of land.

8. It is to be noted that it was the LEP in its original condition that created Zone No 9(a) and that the amendments made to cl 43 by Amendment No 78 did not alter the creation of that Zone. As earlier stated, in its original condition, cl 43 of the LEP nominated the “Commissioner for Main Roads” as the public authority responsible for the acquisition of “Arterial Roads” and nominated the Council as the public authority responsible for the acquisition of “Local Road Widening”  The effect of the amendments made by Amendment No 78 to cl 43 was that the clause abandoned the distinction between lands reserved for “Arterial Roads” and for “Local Road widening” and instead simply referred to “Zone No 9(a) (Proposed Roads)”.

9. Both the creation and the content of Zone No 9(a) by the LEP in its original condition have remained unchanged by subsequent LEP amendments, the stated objective for that Zone being:

   …..to set aside land (being land that the Council or a Government instrumentality intends to acquire) for various proposed roads.

10. It may be readily accepted that Zone No 9(a) relevantly “reserved” land for a purpose referred to in section 26(c) (namely a “public place within the meaning of the Local Government Act 1993”) within the meaning of cl 10 of the Regulation.  However, that was the effect of the LEP in its original condition and not the effect of Amendment No 78.  But the more problematic question is whether the provisions of cl 43(2)(f) and cl 43(3) are relevantly “a provision in respect of that reservation as required by section 27 of the Act” within the meaning of cl 10 of the Regulation.  This question assumes that cl 10(b) of the Regulation can apply to an earlier made provision of the LEP reserving the land for the public purpose.

11. It is at this very point that the Respondents’ various submissions unwittingly come into direct collision with themselves, because the Respondents submitted in respect of s 27 that cl 43(2)(f) was invalid for two further reasons—(i) because “the Minister administering the Roads Act 1993” was not relevantly a “public authority” as that term is defined by the EP&A Act, s 4(1); and (ii) because the LEP, when zoning lands 9(a) did not reserve the lands “for use exclusively for” that public purpose:  see Carson v Department of Environment and Planning (1985) 3 NSWLR 89.

12. In my judgment, the reasoning of the Court of Appeal’s decision in Carson when applied to the relevant provisions of the LEP in respect of controlling the purposes of development of Zone 9(a) land (see especially cl 44(1)) requires the conclusion that the controls did not reserve use of that land “exclusively” for the public purpose of roads.  Accordingly, s 27 did not require provision to be made in the LEP “for or with respect to the acquisition by a public authority” of land zoned 9(a).  Accordingly, cl 10 of the Regulation did not apply to Amendment No 78.

13. It follows that the Respondents have not substantiated their allegation that Amendment No 78 was made in breach of cl 10 of the Regulation because s 27 did not require any acquisition provision to be contained in Amendment No 78.

14. This ground for denying liability fails.

Ground 6:  clause 43(2)(f) is ultra vires ss 26 and 27 of the EP&A Act

1. I have previously recited the relevant provisions of ss 26 and 27 and I have previously outlined the Respondents’ submissions to the effect that cl 43(2)(f) read with cl 43(3) do not comply with ss 26 and 27 because the Minister administering the Roads Act 1993 is not relevantly a “public authority” and because the LEP provisions relating to Zone No 9(a) did not have the effect of reserving that land “for use exclusively for the public purpose of roads”.  Upon these grounds, it was submitted by the Respondents that cl 43(2)(f) and cl 43(3) were ultra vires ss 26 and 27.

2. I am unable to accept this submission, which I think profoundly misconceives the true meaning of s 27.

3. That section in terms, only applies to a case where “an environmental planning instrument reserves land for use exclusively for a purpose referred to in s 26(1)(c)”.  As Carson’s case attests, there can be a provision made pursuant to s 26(1)(c) reserving land for a designated public purpose but not in such a manner that limits the use of such land “exclusively” for the designated public purpose.

4. As Carson’s case also establishes, where it is concluded as a matter of construction that the provisions of the environmental planning instrument do not relevantly reserve land for “use exclusively” for a designated public purpose, s 27 simply has no application.

5. It follows that the Respondents’ submission that such a state of affairs (the existence of a provision reserving land for a public purpose but not exclusively for that purpose) is ultra vires s 27 is simply misconceived.

6. The related argument advanced by the Respondents to the effect that since the “Minister administering the Roads Act 1993” is not relevantly a “public authority” (as that term is defined by the EP&A Act), cl 43(2)(f) is on that account, ultra vires s 27, is in my judgment, similarly misconceived.  In any event, once it is concluded, as I have held, conformably with the Respondents’ own argument that the LEP does not reserve land within Zone 9(a) “exclusively” for the designated public purpose (‘roads”), the question whether the Minister is relevantly a “public authority” simply does not arise, because neither s 27 (nor cl 10 of the Regulation) applies.

7. But for completeness, I would also reject the Respondents’ argument that “the Minister administering the Roads Act” could not qualify as a “public authority” for the purposes of s 27 assuming that that section were applicable.  The definition of “public authority” adopted by the EP&A Act, s 4(1) does not appear to include “Ministers of the Crown”.  However, like all definition sections, it applies “unless the context or subject matter otherwise indicates or requires”.  It cannot be seriously doubted that the subject or context of s 27 would necessarily include within its ambit, a Minister of the Crown acting in an official capacity.

8. Although I have rejected the Respondents’ argument that cl 43(2)(f) and cl 43(3) are ultra vires ss 26 and 27 there remains for consideration the major premise in the Respondents’ argument, namely that unless cl 43(2)(f) and cl 43(3) are authorised by ss 26 and 27, they are otherwise invalid, because they cannot otherwise be sanctioned as valid provisions of an environmental planning instrument.

9. In my opinion, this major premise in the Respondents’ argument is also flawed.  In my opinion, cl 43(2)(f) and cl 43(3) are valid provisions being within the power conferred by the EP&A Act, ss 24 and 26 cf Liverpool City Council v Weir (1984) 51LGRA 250 at 254.

10. This ground for denying liability fails.

Ground 7:  the EP&A Act, s 35 does not preclude the Respondents’ challenges to the validity of cl 43(2)(f) and cl 43(3)

1. Since I have held that the Respondents’ several challenges to the validity of cl 43 have all failed, this question does not strictly require decision.  However, in deference to the argument advanced, I should state my opinion that s 35 does preclude the Respondents’ challenges to the validity of Amendment No 78 which came into force in May 2000.  Those collateral challenges arose more than three years after that date.

2. Section 35 provides as follows:

   The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication in the Gazette.

3. There is direct authority in this Court (Yadle Investments Pty Ltd v Roads and Traffic Authority (1989) 72 LGRA 409) to the effect that s 35 precluded a challenge brought outside the statutory three months period to the validity of a provision of local environmental plan requiring the Roads and Traffic Authority to acquire land following service of an acquisition notice given by the land owner.  That challenge was founded upon the ground that the Roads and Traffic Authority had not given its concurrence to the relevant provision contained in the local environmental plan.  That is, the challenge was the same as that aspect of the Respondents’ present challenge based upon alleged non-compliance with cl 10 of the Regulation.

4. Stein J in holding that s 35 precluded the challenge to validity brought beyond the statutory three months period stated the following at 413:

   In my opinion s 35 does not preclude a challenge to the validity of an environmental planning instrument after three months of its gazettal if the basis of the challenge is bad faith, manifest jurisdictional error or ultra vires.  I understand manifest jurisdictional error or ultra vires to mean one which is obvious.  It must appear plainly on the face of the instrument.

   When one applies the above test to the subject local environmental plan it could not be concluded that cl 15 reveals a manifest jurisdictional error or ultra vires.  On the face of the instrument the clause appears to be a perfectly valid exercise of power.  In essence the case of the Roads and Traffic Authority alleges a procedural failure to comply with reg 16(2) in that it is submitted that it did not concur in the inclusion of the provision in the plan.  In my opinion the application of the RTA is caught by s 35.  No bad faith or manifest excess of jurisdiction has been shown.  Application No 40150/89 must therefore be dismissed.

1. I accept that since the decision in Yadle, the EP&A Act, s 35 and other similar statutory provisions have received considerable judicial attention in this Court, in the Court of Appeal and in the High Court of Australia.  The Respondents helpfully drew attention to the most recent decision of the Court of Appeal in Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212, which contains a comprehensive review of relevant existing case law.

2. However, I do not think that the very helpful exposition of relevant principles provided by the three separate judgments delivered in that case require the conclusion that the decision in Yadle was wrong.  On the contrary, I consider the reasoning in those judgments to support the conclusion in Yadle and my conclusion in the present case that that the Respondents’ various challenges to the validity of cl 43(2)(f) and cl 43(3) are precluded by the EP&A Act, s 35.

Ground 8: Refusal of relief in the exercise of judicial discretion

1. The Respondents faintly argued that relief should be refused on discretionary grounds on account of (i) the Applicant’s delay in commencing the proceedings; and (ii) the conduct of the Council.

2. In advancing their argument, the Respondents frankly conceded the difficulty encountered by the leading judgment of Powell JA in Fidler when his Honour said at 303:

   It seems to me that, in a case where such a failure has been demonstrated, it is not open to the Land and Environment Court, at first instance, or to this Court, on appeal, as a matter of discretion, to refuse to make an order for compulsory acquisition.

3. But even if those observations were not considered to exclude the exercise of judicial discretion, the Respondents have not made out their case for refusing relief on discretionary grounds.

4. As to the alleged delay by the Applicant in commencing the proceedings, I do not think there was any relevant delay, especially considering the unusual difficulty encountered by the Applicant in ascertaining who relevantly was the “Minister administering the Roads Act 1993” for the purposes of cl 43(2)(f).

5. As to the alleged conduct of the Council, little can be said because the matter was not significantly addressed in the evidence which was limited to the documentary materials.  It is apparent that the Council and the Roads and Traffic Authority are in dispute as to which of those bodies is responsible in terms of the Roads Act 1993 for the proposed town centre by-pass road.  The evidence in this case is simply too sketchy to determine the precise status under the Roads Act 1993 of the subject land or its future development for road purposes. But this dispute between the public authorities should not be allowed to prejudice the enforcement of statutory rights conferred upon the Applicant as the owner of the relevant land against the public body charged with the correlative statutory duty to acquire that land upon receipt of a written acquisition notice.

6. In my judgment, no case for refusing relief on discretionary grounds has been made out by the Respondents.

E.           CONCLUSIONS AND ORDERS

1. The Respondents have failed to sustain any of their grounds for resisting the relief claimed.

2. The Applicant has established its right to have the relevant land acquired by the relevant Minister.  At the time the acquisition notices were given, the relevant Minister was the second Respondent.

3. However, it now appears that the identify of the relevant Minister has changed from the position that existed when each of the present Respondents was given notice in writing to acquire the relevant land.  It may become necessary that the currently relevant Ministers be joined as a party to the proceedings.  However, for the present time, I shall reserve the Applicant’s application to amend the proceedings for that purpose because I propose at this stage to only grant appropriate declaratory relief upon the basis that the Respondents, being Ministers of the Crown, will act responsibly upon the declaration.  If however, further relief is necessary, I will expressly reserve liberty to apply to obtain that further relief (which may include the granting of leave to amend the parties to the litigation).

4. Accordingly, I make the following orders:

5. Declare that the second Respondent, upon his receipt on or about 15 November 2002 of the written notice given by the Applicant for the acquisition of that part of its land being lot 2 Deposited Plan 588653 and known as Nos 148-154 Jonson Street, Byron Bay as is zoned 9(a) (Proposed Road) by the Byron Local Environmental Plan 1988, thereupon became bound to acquire that land pursuant to clause 43(3) of that Local Environmental Plan.

6. Reserve the Applicant’s application to amend the parties to the proceedings.

7. Grant liberty to the Applicant to apply upon five days notice for any further relief (including any amendment to the parties) that may be necessary to enforce the public duty declared in the Declaration.

8. The exhibits be returned.

9. The question of costs be reserved.