Satmell Holdings Pty Ltd v Blacktown City Council

[2019] NSWLEC 94

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Satmell Holdings Pty Ltd v Blacktown City Council [2019] NSWLEC 94
Hearing dates:	26, 27 February and 6 March 2019
Date of orders:	28 June 2019
Decision date:	28 June 2019
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See orders at [126].
Catchwords:	JUDICIAL REVIEW: validity of contributions plans – whether contributions plans exceeded permissible cap for monetary levies – whether contributions plans properly approved by council – whether contributions plans required review by Minister or IPART to be correctly approved by council – whether a failure to correctly approve contributions plans by council resulted in their invalidity – summons dismissed with costs.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 7.1, 7.11, 7.13, 7.17, 7.18, 7.20, 94, 94E Environmental Planning and Assessment Regulations 2000, cls 26, 31 Interpretation Act 1987, s 3(1) Land and Environment Court 1979, s 56A Recovery of Imposts Act 1963, s 2(1)
Cases Cited:	Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 Blacktown City Council v Satmell Holdings [2019] NSWLEC 93 City of Ryde Council v State of New South Wales [2019] NSWLEC 47 Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147 Latitude Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 110 ALR 209 Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 Minister for Industry and Commerce v Tooheys [1982] FCA 135; (1982) 60 FLR 325 Minogue v Victoria [2018] HCA 27; (2018) 92 ALJR 668 MLC Properties v Camden Council [1997] NSWLEC 130; (1997) 96 LGERA 52 Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 3) [2018] NSWLEC 193 Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Satmell Holdings Pty Ltd v Blacktown City Council [2018] NSWLEC 1256 Seafarers’ Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683; (1999) 94 FCR 594 Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 Smith v Wyong Shire Council [2003] NSWCA 332; (2003) 132 LGERA 148 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 Stannic Securities Pty Ltd v Wyong Shire Council [2010] NSWLEC 249 The Owners Strata Plan No. 4983 v Canny [2018] NSWCA 275; (2018) 19 BPR 39 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 Wechsler v Auburn Council (1997) 130 LGERA 134 Westfield Management Limited v Direct Factory Outlets Homebush (No 3) [2004] NSWLEC 688 Westfield Management Ltd v Perpetual Trustee Ltd [2006] NSWCA 245
Texts Cited:	D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	Satmell Holdings Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: Mr A Galasso SC with Mr N Eastman (Applicant) Dr S Pritchard SC with Ms J McKelvey (Respondent) Solicitor: Mills Oakley (Applicant) Clayton Utz (Respondent)
File Number(s):	2018/178253
Publication restriction:	N/A

Judgment

Related Class 1 and Class 4 Matters Are Before the Court

1. Before the Court are two sets of proceedings:

1. first, these Class 4 proceedings in which the applicant, Satmell Holdings Pty Ltd (“Satmell”), challenges the validity of two contributions plans (“the judicial review proceedings”), specifically (together, “the Contributions Plans”):

1. Contributions Plan No 22L – Rouse Hill (Land) (“Contributions Plan 22L”); and

2. Contributions Plan No 22W – Rouse Hill (Works) (“Contributions Plan 22W”); and

2. second, a separate Class 1 appeal by the respondent in these proceedings (the applicant in the Class 1 appeal), Blacktown City Council (“the Council”), pursuant to s 56A of the Land and Environment Court 1979 (“the LEC Act”) from Dickson C’s judgment in Satmell Holdings Pty Ltd v Blacktown City Council [2018] NSWLEC 1256 (“the s 56A appeal”). In those Class 1 proceedings, the Commissioner upheld an appeal against the refusal by the Council of development application SPP-17-00012 (“the DA”).

2. As is evident from the factual matrix identical to both sets of proceedings, the judicial review proceedings and the s 56A appeal raise common and discrete issues for determination. Accordingly, this judgment must be read together with Blacktown City Council v Satmell Holdings [2019] NSWLEC 93. For ease of reference, the same defined terms have been used in both judgments, and the repetition of relevant factual and legal matters has, wherever possible, sought to be avoided.

3. This judgment deals with the overlapping issues in the judicial review proceedings and the s 56A appeal.

4. In relation to the Court’s jurisdiction on an appeal under s 56A of the LEC Act, the Court is confined to addressing the ground of appeal challenging the Commissioner’s decision on questions of law (Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [100]).

Satmell Challenges the Making of Two Contributions Plans

5. It is convenient in this judgment to set out the salient facts giving rise to both the judicial review proceedings and the s 56A appeal. They are not controversial and were largely set out in a statement of agreed facts provided to the Court.

6. The site the subject of both the judicial review proceedings and the s 56A appeal is described as Lot 3 DP135890, known as, 876 Windsor Road, Rouse Hill (“the site”). It is located in the Council’s local government area.

7. The site is located within Area 20 under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (“the Growth SEPP”).

The Local Infrastructure Contributions Directions

8. On 21 August 2012, the Minister for Planning (“the Minister”) issued Environmental Planning and Assessment (Local Infrastructure Contributions) Direction 2012 under s 94E (as it then was) of the Environmental Planning and Assessment Act 1979 (“the EPAA”), capping the maximum amount of contributions payable under s 94 of that Act in respect of all land within the State, except for the land nominated at Schedule 1 of that Direction (“the 2012 Direction”). The 2012 Direction took effect on 28 August 2012.

9. Schedule 2 of the 2012 Direction identifies land that is subject to a maximum contribution of $30,000 for each dwelling or residential lot authorised by the consent. The site is nominated in Schedule 2 as being “land within a growth centre within the meaning of the Growth SEPP (being the North West Growth Centre and the South West Growth Centre) other than land that is a precinct or other area identified in Schedule 1.”

10. Clause 6 of the 2012 Direction imposed the contribution cap on land nominated in Schedule 2 (see especially at cl 6(3)):

6. Maximum amount of monetary contributions under s 94

(1)    This clause applies to a development consent to the extent that it authorises one or more dwellings or the subdivision of land into residential lots.

(2) A council (or planning panel) must not grant development consent (other than for development on land identified in Schedule 2) subject to a condition under section 94(1) or (3) of the Environmental Planning and Assessment Act 1979 requiring the payment of a monetary contribution that:

(a)    in the case of a development consent that authorises one or more dwellings, exceeds $20 000 for each dwelling authorised by the consent, or

(b) in the case of a development consent that authorises subdivision into residential lots, exceeds $20 000 for each residential lot authorised to be created by the development consent.

(3) A council (or planning panel) must not grant development consent for development on any land identified in Schedule 2 subject to a condition under section 94(1) or (3) of the Environmental Planning and Assessment Act 1979 requiring the payment of a monetary contribution that:

(a)    in the case of a development consent that authorises one or more dwellings, exceeds $30 000 for each dwelling authorised by the consent, or

(b) in the case of a development consent that authorises subdivision into residential lots, exceeds $30 000 for each residential lot authorised to be created by the development consent.

11. On 17 July 2017, the 2012 Direction was amended when the Minister issued Environmental Planning and Assessment (Local Infrastructure Contributions) Amendment Direction 2017 under s 94E of the EPAA (“the 2017 Direction”). The 2017 Direction took effect on 28 July 2017.

12. The 2017 Direction amended cl 5(3) to read as follows:

(3)    A reference in this Direction to an IPART review contributions plan is a reference to a contributions plan that satisfies all of the following:

(a)    IPART has reviewed the contributions plan (or a draft of the plan) in accordance with assessment criteria set out in any applicable practice note, including whether the facilities to which the contributions plan relates are on any essential works list set out in the practice note,

(b)   IPART has published a report of its review on its website and forwarded it to the Minister for Planning,

(c)   following the forwarding of the report to the Minister, the Minister (or a nominee of the Minister) has advised the relevant council as to any amendments required to the contributions plan,

(d)   the Minister's (or nominee's) advice to the council has been published on the website of the Department of Planning and Environment,

(e)   the relevant council has approved the plan, and has made any amendments to the plan, in accordance with the written advice of the Minister or the Minister's nominee.

An applicable practice note, referred to in paragraph (a), is the Revised Local Development Contributions Practice Note: For the assessment of Local Contributions Plans by IPART, issued by the Department of Planning and Environment, February 2014, as amended or replaced from time to time.

13. It also inserted cls 6(5) and 6A, which relevantly provided that:

Clause 6(5)

(5)    This clause does not apply to the imposition (after the 2017 direction takes effect) of a condition in accordance with an IPART reviewed contributions plan.

Clauses 6A, 6B and 6C

Insert after clause 6:

(6A)    Raising cap on contributions in specified precincts after 2017 amendment direction

(1)    This clause applies (instead of clause 6) to a development consent to the extent that the consent relates to land to which any of the specified contributions plans apply when the 2017 amendment direction takes effect and authorises one or more dwellings on the land or subdivision of the land into residential lots.

(2)    A council or planning panel must not grant development consent that is subject to a condition requiring the payment of a monetary contribution that exceeds the amount specified in the table below for the relevant period (being the period in which the development consent is granted).

Relevant period	Maximum amount of contribution
1	Date on which 2017 amendment direction takes effect to 31 December 2017	$30, 000 for each dwelling or each residential lot
2	1 January 2018 to 30 June 2018	$35,000 for each dwelling or each residential lot
3	1 July 2018 to 30 June 2019	$40,000 for each dwelling or each residential lot
4	1 July 2019 to 30 June 2020	$45,000 for each dwelling or each residential lot
5	On and from 1 July 2020	An amount determined in accordance with the applicable contributions plan, if the contributions plan is a specified contributions plan as in force at the date on which the 2017 amendment direction takes effect or an IPART reviewed contributions plan

(3) In this clause, specified contributions plan means any of the following:

…

Blacktown

…

Section 94 Contributions Plan No.22 – Area 20 Precinct…

14. In short, the 2017 Direction relevantly amended the 2012 Direction by:

1. introducing the concept of an “IPART reviewed contributions plan” which excluded the operation of cl 6 of the 2012 Direction if a contributions condition was imposed in accordance with such a plan;

2. adding cl 6(5) which had the effect of lifting the restriction on the cap on developments to which cl 6 applied if the condition was imposed in accordance with a contributions plan that had been “reviewed” by IPART;

3. nominating maximum contributions depending on the date of the grant of development consent and depending on the location of the land. The site was subject to cl 6A because a “specified contributions plan”, namely, the Contributions Plan 22 - Area 20 Precinct (“Contributions Plan Area 20”), applied to the site as at 28 July 2017, when the 2017 Direction took effect. By operation of cl 6A(1), land the subject of the Contributions Plan Area 20 (such as Satmell’s land) was subject to the caps set out in cl 6A to the exclusion of the operation of cl 6, which stated that cl 6 clause “does not apply” to the imposition of a condition in accordance with an IPART reviewed contributions plan (see also cl 6(5)). Clause 6A(2) nominated the relevant maximum monetary contribution to be $35,000 for each dwelling or residential lot if the consent was granted between 1 January and 30 June 2018. Thus cl 6A increased the applicable caps over time; and

4. from 1 July 2020, determining contributions in accordance with “the applicable contributions plan, if the contributions plan is a specified contributions plan as in force at the date on which the [2017 Direction] takes effect or an IPART reviewed contributions plan”. In other words, the caps were to be phased out by 1 July 2020, at which time the applicable contributions would be either the amounts payable under a “specified contributions plan” or an “IPART reviewed contributions plan”.

15. On 6 February 2018, the 2012 Direction was amended again when the Minister issued the Environmental Planning and Assessment (Local Infrastructure Contributions) Amendment Direction 2018 under s 94E of the EPAA, by inserting cl 6D which raised the maximum cap for contributions for rezoned land in Riverstone East within the Council’s local government area (“the 2018 Direction”). The 2018 Direction took effect on 23 February 2018.

16. Clause 6D of the 2018 Direction did not specifically affect the site because it was not located within the rezoned land in Riverstone East. However, both Contributions Plans applied to that rezoned land.

17. Finally, on 18 January 2019, the 2012 Direction was further amended (“the amended 2012 Direction”) when the Environmental Planning and Assessment (Local Infrastructure Contributions) Further Amendment Direction 2018 was gazetted (“the 2019 Direction”). By the 2019 Direction cl 6A(5) was inserted into the 2012 Direction as follows (emphasis added):

Clause 6A

Insert after clause 6A(4):

(5)   To avoid doubt, this clause continues to apply in relation to land to which a specified contributions plan    as in force at 28 July 2017 applies (or applied) even if:

(a)    that plan is amended or repealed, or

(b)   any new or amended contributions plan that apples to the land also applies to other land.

Accordingly, a monetary contribution may be imposed as a condition of consent for development on any such land, if allowed by the applicable contributions plan, up to the maximum amounts set out in items 1 to 4 of the table to subclause (2), irrespective of whether the amended plan or the new plan is an IPART reviewed contributions plan.

(6)    If, on or after 1 July 2020, the contributions plan that applies when development consent is granted is not the relevant specified contributions plan as in force at 28 July 2017 or an IPART reviewed contributions plan, the consent authority must not grant development consent subject to a condition requiring the payment of a monetary contribution that exceeds $30,000 for each dwelling or each residential lot.

The Practice Notes

18. In January 2018, the Secretary of the Department of Planning and Environment (“the Secretary”) published the Secretary’s Practice Note: Local Infrastructure Contributions (“the Practice Note”).

19. The Practice Note replaced the Revised Local Development Contributions Practice Note for the assessment of Local Contributions Plans by IPART dated February 2014.

20. The Practice Note contained a number of provisions that dealt with the timing of the adoption of the contributions plans that were to be IPART reviewed. 

21. The “Introduction” to the Practice Note stated that (p 4):

Contributions plans with contribution rates above these amounts must only include land and facilities on the essential work list. To be eligible to impose a contribution rate above the cap or claim LIGS funding, a Council must submit the contributions plan to IPART for assessment and implement any advice given by the Minister.

If a contributions plan for a LIGS transition area has not been reviewed by IPART then council will not be eligible for LIGS funding.

22. It further stated that the Practice Note “should be read in conjunction with: the Direction issued by the Minister for Planning that relates to the local infrastructure contributions assessment process (detailed below)” and “the 2005 Practice Notes”.

23. The term “IPART reviewed contributions plan” was defined as “a reference to a contributions plan that satisfies all items in clause 5(3) of the Direction.”

24. Under “Part 1 Legislative Framework”, section “1.2 Ministerial Direction – section 94E of the EP&A Act” indicated that (pp 8-9):

The Direction requires councils to submit any contributions plan² that proposes to charge a contribution rate above the amounts specified in the Direction to IPART for assessment (see Table 1).

For councils in LIGS transition areas (refer to Table 1) IPART must assess the contributions plan and the council must make any changes advised by the Minister before councils can access LIGS funding or charge the new contribution rates.

²    If council has an existing contributions plan that has been assessed by IPART and the plan is being amended as under Clause 32(3) of the EP&A Regulation then the Direction does not require the council to resubmit the plan to IPART to continue to charge contributions in accordance with the IPART assessed plan.

25. Under “Part 2 – Contributions Plan Assessment Process”, sections “2.1 Role of Local Councils” and “2.3 Role of the Minister for Planning”, respectively stated (pp 11-12):

2.1 Role of Local Councils

Local councils prepare and exhibit the draft contributions plans in accordance with the EP&A Act and EP&A Regulation. Council should submit the draft contributions plan to IPART for review as either:

•   a new contributions plan

•   a new contributions plan that seeks to amend an existing contributions plan consistent with clause 32 of the EP&A Regulation.

Local councils are only required to submit a draft contributions plan to IPART for review if the plan proposes a contributions rate (refer to Table 1, Part 1 of this Practice Note) that exceeds the maximum amounts specified in the Direction.

The local council may adopt the draft contributions plan after it has implemented the advice received from the Minister. The Minister's advice will consider the recommendations from IPART's review.

Once the amendments have been made and council has adopted the plan, the council may impose the contributions s [sic] conditions of development consent, consistent with the plan (subject to the relevant caps in the Direction for development in transition areas). In these transition areas, a council is then able to apply for LIGS funding.

Local councils do not need to submit a draft contributions plan to IPART for assessment if the contributions plan falls wholly within the areas listed in Schedule 1 of the Direction.

…

2.3    Role of the Minister for Planning

The Minister for Planning considers the report and recommendations of IPART. The Minister for Planning provides advice to council on the contributions plan, particularly on whether it should make any changes to the contributions plan and publishes the advice on the DPE website.

Council must make changes and adopt the revised contributions plan in accordance with the Minister's advice.

26. In January 2019, the Secretary published the Secretary’s Practice Note: Local Infrastructure Contributions (“the 2019 Practice Note”).

27. The 2019 Practice Note replaced the Practice Note, but did not materially alter the Practice Note for present purposes.

The Contributions Plans

28. On 5 June 2013 the Council approved Contributions Plan Area 20.

29. As stated above, the Contributions Plan Area 20 is a “specified plan” identified in cl 6A(1) of the amended 2012 Direction (amended by the 2017 Direction).

30. In 2017 the Council reviewed Contributions Plan Area 20 with a view to extending the area to which it applied beyond Area 20.

31. In addition, the Council decided that the Plan would be divided into a contributions plan for land and a contributions plan for works – the Contributions Plans – with the two new plans operating concurrently.

32. In section 7.8 dealing with “Indicative Contribution Rates (Residential)”, the Contributions Plan Area 20 provided that:

7.8    Indicative Contribution Rates (Residential)

IPART’s review of CP 22 recommended that Council should provide indicative contributions per lot for various types of development and dwelling types.

It should be noted that a survey and formal detailed plan is needed to accurately determine the actual amount of contributions payable.

In the event that the contributions imposed under this Plan are greater than the monetary cap referred to in Section 1.18 the contributions levied on development consent will not exceed the monetary cap imposed under the Minister’s Direction.

Density (Dwellings Per Ha)	Occupancy (No. Persons Per Dwelling)	Indicative Contributions Per Dwelling
12.5	2.9	$73,159
15	2.9	$64,463
20	2.9	$53,589
25	2.9	$37,246
45	1.2	$17,719
45	1.9	$22,781
45	2.7	$28,565

33. Between 20 December 2017 and 20 January 2018, the draft Contributions Plans were publicly exhibited.

34. The Contributions Plans were the subject of a Council resolution dated 28 February 2018 (“the Council resolution”) to (emphasis added):

FR1205 - CS380025 - Revised Section 94 Contributions Plans No's 22L and 22W - Rouse Hill 145-187-32

MOTION (Bunting/Singh)

1. Adopt revised Section 94 Contributions Plans No’s 22L – Rouse Hill (Land) and 22W – Rouse Hill (Works).

2. Write to submitters advising of Council’s decision.

3. Submit both plans to IPART and the Minister for Planning and Environment for assessment and approval. CARRIED   

35. The language of ‘adoption’ was reflected elsewhere in the material accompanying the resolution. For example, the “Report Recommendation” (at p 1) attached to the resolution was also to (emphasis added):

Report Recommendation

1. Adopt revised Section 94 Contributions Plans No’s 22L – Rouse Hill (Land) and 22W – Rouse Hill (Works).

2. Write to submitters advising of Council’s decision.

3. Submit both plans to IPART and the Minister for Planning and Environment for assessment and approval.

36. The Contributions Plans were advertised in local newspapers as coming into force on 7 March 2018.

37. The Contributions Plans were submitted to IPART for assessment on 13 April 2018.

38. In December 2018, IPART released its assessment of the Contributions Plans and recommended a reduction in the total cost of works from $987.6 million to $832.7 million.

39. On 17 December 2018, IPART provided its recommendations to the Department of Planning and Environment (“the Department”) in relation to the Contributions Plans.

40. Contribution Plans 22L expressly stated that it has a relationship with Contributions Plan 22W. It also made plain that the contributions levied could not exceed the monetary cap set out in the amended 2012 Direction. At section 1.19 dealing with “Priority of works and facilities” it said that (pp 8-9):

1.19 Priority of works and facilities

The Minister for Planning has issued a direction to councils under S.94E of the Environmental Planning and Assessment Act 1979 (EPA Act).

The Minister's direction has the effect of preventing Council from making a s94 contributions plan that authorises the imposition of conditions of consent requiring monetary s94 contributions for certain residential development in excess of the monetary cap specified by or under the Direction. For land within “LIGS Transition Areas”, an incremental cap applies per residential lot/dwelling This provision aside, this plan would authorise contributions in excess of the monetary cap.

For that reason, and for so long as the Direction or any similar replacement direction (Direction) remains in place, it may not be possible to fund all of the works and facilities identified in this plan.

Accordingly, the categories of works for which contributions are to be sought in respect of the relevant residential development under this plan have been prioritised.

The order of priority of the categories of works (from highest to lowest) is as follows:

Water Cycle Management Facilities.

Traffic & Transport Management Facilities.

Open Space and Recreation Facilities.

Community Facilities

Combined Precinct Facility (E2 Conservation Zone)

Based on the above priorities:

in the event that the contributions imposed under this plan are greater than the monetary cap referred to above, the contributions will be allocated in accordance with the above order of priorities with the contribution for the lowest priority category is reduced commensurately in order to not exceed the monetary cap.

in the unlikely event that the contributions imposed under this plan are less than the monetary cap referred to above, the base rates in Appendix I are applicable.

The categories of works and facilities for which contributions are sought in accordance with the priorities shall be specified in the s94 condition.

41. And at section 8.7 concerning “Indicative Contribution Rates (Residential)” Contributions Plan 22L said (pp 33-34):

8.7   Indicative Contribution Rates (Residential)

IPART has recommended that Council should provide indicative contributions per lot for various types of development and dwelling types. As such, indicative contributions per lot for Rouse Hill are provided in the table below:

Indicative Contributions Per Dwelling
Density (Dwelling per Ha)	12.5	15	20	25	45
Occupancy (No. persons Per Dwelling)	2.9	2.9	2.9	2.7	2.7
First Ponds Creek	$57,458	$54,755	$46,487	$42,869
Second Ponds Creek	$62,898	$57,465	$51,370	$45,579
Killarnery Chain of Ponds Creek	$57,715	$54,969	$46,616

It should be noted that a survey and formal detailed plan is needed to accurately determine the actual amount of contributions payable.

In the event that the contributions imposed under this plan are greater than the monetary cap referred to in Section 1.19, the contributions levied on development consent will not exceed the monetary cap imposed on development consent under the Minister's Direction

42. The Contributions Plan 22W relevantly mirrored the Contributions Plan 22L, however, the indicative contributions rates per dwelling specified in the Table differed (see sections 1.19 and 6.7, respectively).

Power to Approve Contributions Plans

43. Part 7 of the EPAA regulates the circumstances in which a contribution may be levied. The power to levy a contribution is conferred upon a consent authority in s 7.11(1) of the Act:

7.11   Contribution towards provision or improvement of amenities or services

(1)     If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring:

(a)     the dedication of land free of cost, or

(b)     the payment of a monetary contribution,

or both.

44. The preconditions to the exercise of that power are contained in s 7.11(2):

(2)    A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.

45. The ability to impose a condition requiring the payment of contributions under s 7.11 is constrained by s 7.13, which relevantly provides that:

7.13 Section 7.11 or 7.12 conditions subject to contributions plan

(1) A consent authority may impose a condition under section 7.11 or 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).

(2)     However, in the case of a consent authority other than a council:

(a) the consent authority may impose a condition under section 7.11 or 7.12 even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but

(b)     the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.

(3) A condition under section 7.11 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.

46. The Minister may make a direction pursuant to s 7.17 of the EPAA (see, especially s 7.17(1)(b)(ii) - formerly s 94E), which is in the following terms:

7.17   Directions by Minister

(1) The Minister may, generally or in any particular case or class of cases, direct a consent authority as to:

(a) the public amenities and public services in relation to which a condition under section 7.11 may or may not be imposed, and

(b) in the case of a condition under section 7.11 requiring the payment of a monetary contribution:

(i)     the means by which or the factors in relation to which the amount of the contribution may or may not be calculated or determined, and

(ii)     the maximum amount of any such contribution, and

(c) the things that may or may not be accepted as a material public benefit for the purposes of a condition under section 7.11, and

(d) the type or area of development in respect of which a condition under section 7.12 may be imposed and the maximum percentage of the levy, and

(e)     the use of monetary contributions or levies for purposes other than those for which they were paid, and

(f)     the preparation of joint contributions plans by two or more councils.

(2)     A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms.

(3)     A consent authority must not, in granting development consent in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division and despite the provisions of any contributions plan.

47. Construction of the earlier equivalent of s 7.17, namely, s 94E, was undertaken in Stannic Securities Pty Ltd v Wyong Shire Council [2010] NSWLEC 249 by Biscoe J applying orthodox interpretation principles (at [21] and [22]):

21 The Minister and the Council submit, and the applicant contests, that the Directions are analogous to regulations because they have binding force on all local councils when exercising statutory power and third parties may rely on them; that it is therefore appropriate to apply the principles of statutory construction set out in the next paragraph; and that those principles are, in any event, reflective of the general approach taken by the common law to construction of legal documents. There is force in the submission. The primary object of interpretation of a statute and the primary object of interpretation of a legal document are the same: to determine objectively the meaning of words in their context. Accordingly, there is some convergence in approach in statutory interpretation and in contractual interpretation notwithstanding that some documents by their nature, may attract special rules of interpretation which are not of general application: Spigelman CJ, From Text to Context: Contemporary Contractual Interpretation, (2007) 81 ALJ 322.

22    The following are the principles of statutory construction for which the Minister and Council contend, which I accept can be adapted and applied to the Directions and tend to support their construction:

(a)    The primary object is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [69].

(b)    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 provisions: Project Blue Sky at [70].

(c)    A court must strive to give effect to every word: Project Blue Sky at [71].

(d) A construction that would promote the purpose or object of the statute is to be preferred to an alternative construction: s 33 Interpretation Act 1987. 

(e)    A way of discerning the purpose may be to read the Act in the sequence in which it was written, that is, from the beginning onwards: Patman v Fletcher's Fotographics Pty Ltd (1984) 6 IR 471 at 474-5 per Priestley JA:

48. These principles not being wrong, let along plainly wrong, are respectfully adopted and applied in this judgment.

49. The term “contributions plan” is defined in s 7.1 of the EPAA as “a contributions plan approved under s 7.18”. Thus, s 7.18 relevantly states that:

7.18   Contributions plans—making

(1)  A council, or two or more councils, may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions under this Division (other than Subdivision 4).

(2) If a contributions plan authorises the imposition of conditions under section 7.12, the plan is to specify the type or area of development in respect of which a condition under section 7.12 may be imposed and is to preclude the imposition of a condition under section 7.11 in respect of that type or area of development.

(2A) A contributions plan does not authorise the imposition of a condition under section 7.11 on a grant of development consent if the public amenities or public services to which that condition relates are, in whole or in part, infrastructure provided, or to be provided, in relation to the development out of contributions collected under Subdivision 4.

(3)     The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.

(4)     A council is, as soon as practicable after approving a contributions plan, to provide the Minister with a copy of the plan.

50. The reference to “the regulations” in s 7.18(1) is a reference to the Environmental Planning and Assessment Regulations 2000 (“the EPA Regulations”). Clause 26 of the Regulations sets out the manner by which a contributions plan must be prepared:

26   In what form must a contributions plan be prepared?

(1)     A contributions plan must be prepared having regard to any relevant practice notes adopted for the time being by the Planning Secretary, copies of which are available for inspection and purchase from the offices of the Department.

(2)     One or more contributions plans may be made for all or any part of the council’s area and in relation to one or more public amenities or public services.

(2A)     Despite subclause (2), a contributions plan may be made for land outside the council’s area for the purposes of a condition referred to in section 7.15 of the Act.

(3) The council must not approve a contributions plan that is inconsistent with any direction given to it under section 7.17 of the Act.

(4)     A draft contributions plan must be publicly exhibited for a period of at least 28 days.

51. Clause 31 of the EPA Regulations provides that:

31   Approval of contributions plan by council

(1)  After considering any submissions about the draft contributions plan that have been duly made, the council:

(a)     may approve the plan in the form in which it was publicly exhibited, or

(b)     may approve the plan with such alterations as the council thinks fit, or

(c)     may decide not to proceed with the plan.

(2)     The council must give public notice of its decision in a local newspaper within 28 days after the decision is made.

(3)     Notice of a decision not to proceed with a contributions plan must include the council’s reasons for the decision.

(4)     A contributions plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice.

52. It was uncontentious that cl 31 had been complied with in the making of the Contributions Plans.

53. Finally, s 7.20 of the EPAA expressly deals with challenges to the validity of contributions plans:

7.20   Contributions plans—judicial notice, validity etc

(1)     Judicial notice is to be taken of a contributions plan and of the date on which the plan came into effect.

(2)    It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of a contributions plan have been complied with and performed.

(3)     The validity of any procedure required to be followed in making or approving a contributions plan is not to be questioned in any legal proceedings except those commenced in the Court by any person within 3 months after the date on which the plan came into effect.

(4)     The amendment or repeal, whether in whole or in part, of a contributions plan does not affect the previous operation of the plan or anything duly done under the plan.

The Class 1 Proceedings

54. The proceedings before the Commissioner concerned an appeal against the refusal by the Council of the DA for:

1. the construction of a residential apartment building of three storeys, containing 62 apartments and 77 car spaces in a basement car park;

2. the construction of a multi-dwelling housing development comprising 92 three storey town houses; and

3. a torrens title subdivision to create two allotments for residential development and public roads, road and infrastructure works to create new public roads and the construction of a temporary road and deceleration lane to facilitate temporary access to the site from Windsor Road.

55. Relevantly for present purposes, before the Commissioner was the issue of the imposition of the s 94 contributions as a condition of consent. Satmell argued that the proposed condition for contributions in the amount of $35,000 per lot should not be imposed because the Contributions Plans had not been correctly made.

56. The Commissioner agreed. Her reasons for doing so were as follows (at [113]-[121]):

113    By reference to the originating process, the applicant does not seek a declaration that the contributions plans are invalid (which would fall within judicial review). Rather the Class 1 Application seeks for the Court to remake the Council’s determination of the application under s. 4.16 of the Act.

114    Applying the proceeding I am satisfied that in determining an application it is relevant to consider the question of the relevant contributions plan from which a condition (under s. 4.17 of the Act) is able to be levied.

115 The definition of a contributions plan is made clear in the Act. It states a "contributions plan" means a contributions plan approved under s. 7.18.

116 The power to “approve” a contribution plan is limited by the conditions detailed in the Act and the Regulations. At s. 7.18(3) it states: The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.

117    I accept the submissions of Mr Galasso (at paragraphs [98] to [100]) that Contributions Plans No. 22 L – Rouse Hill Land and 22 W – Rouse Hill Works are not "contributions plans" as defined by the Act. My reasoning is as follows:

the definition of contributions plan is one approved under s. 7.18.

s. 7.18(1) provides that such a plan is to be made “subject to and in accordance with the Regulations”

cl. 26 of the Regulations requires a contributions plan to be made in accordance with the relevant Practice Note and that such a plan cannot be inconsistent with a direction under s. 7.17 of the Act.

cl 6A of the 2017 Amended Direction applies as the Contributions Plan 22- Area 20 Precinct is a specified contributions plan, therefore a maximumof $35,000 applies for each dwelling or each residential lot.

The relevant Practice Note is the 2018 Practice Note.

The Contributions Plans No. 22 L – Rouse Hill Land and 22 W do not satisfy the requirements of the Regulations and the Amended Direction:

(a)    the Amended Direction requires Councils to submit any contributions plan that proposes to charge a contribution rate above the cap to IPART for assessment, reporting and referral to the Minister as detailed in cl. 5(3) of the Amended Direction.

(b)    the plans seek to impose a rate higher than the cap, as detailed in Exhibit 2. The process detailed at Figure 1 of the 2018 Practice Note details steps of both IPART assessment and Ministerial advice prior to the adoption of final contribution plans (Exhibit Y). This process has not been concluded.

(c)    The Regulation addresses the review of Contributions Plans at cl. 32, as follows:

(3)    A council may make the following kinds of amendments to a contributions plan without the need to prepare a new contributions plan:

(a)     minor typographical corrections,

(b) changes to the rates of section 7.11 monetary contributions set out in the plan to reflect quarterly or annual variations to:

(i)     readily accessible index figures adopted by the plan (such as a Consumer Price Index), or

(ii)     index figures prepared by or on behalf of the council from time to time that are specifically adopted by the plan,

(c)     the omission of details concerning works that have been completed

(d) I am satisfied the review undertaken by Council is outside this remit of this clause and is a ‘new contributions plan’ (cl. 3.2(3) of the Regulation. Therefore the plan is required to be made in accordance with the regime outlined in the Act. Importantly s. 7.18(1) of the Act provides that such a plan is to be made “subject to and in accordance with the Regulations” and the Amended Direction (s. 7117(2) of the Act).

(e)    Further whilst the 2018 Practice Note provides the following explanation of the process to undertake amendments to IPART assessed contributions plans, the review undertaken by Council is outside this exemption as the plans seek an increase in contributions:

If a Council has an existing contributions plan that has been assessed by IPART and the plan is being amended as under cl.32(3) of the EP&A Regulation, then the Direction does not require the Council to resubmit the plan to IPART to continue to charge contributions in accordance with the IPART assessed plan.

118 I have considered the submission of Mr White on the effect of s7.20 of the Act. I note at (1) the section requires ‘judicial notice to be taken of a contributions plan and the date on which the plan came into effect’. I am not persuaded that the effect of this clause is that within Class 1 proceedings, where a dispute as to which plan is the correct contributions plan arises, it is inappropriate for the Court to satisfy itself that the plan from which contributions are proposed to be levied is one that has been “approved under section 7.18” as required by the definition and is consistent with a direction of the Minister. I note that s. 7.17(3) of the Act states:

(3)    A consent authority must not, in granting development consent in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division and despite the provisions of any contributions plan.

119    On the basis of the above I am satisfied that a condition requiring payment of a contribution arising from Contributions Plans No. 22 L – Rouse Hill Land and 22 W – Rouse Hill Works cannot be levied under s. 4.17 of the Act.

120 Contributions Plan 22- Area 20 Precinct (In force as at 24 February 2016) has not been repealed in accordance with cl. 32(2) of the Regulation and remains in place. No evidence or submissions have been made to the Court to indicate that this contributions plan is not consistent with the definition of an approved plan under s. 7.18 of the Act.

121    The 2017 Ministerial Direction applies to the imposition of contributions in accordance with Contributions Plan 22- Area 20 Precinct which provides a maximum rate of contributions of $35,000/ dwelling or residential lot (refer paragraph [90]).

57. The Council appealed, essentially contending that the Commissioner did not have jurisdiction in Class 1 to determine whether a contributions plan sought to be relied upon by a consent authority was a “contributions plan” within the meaning of the EPAA, and moreover, that the Commissioner was required to take judicial notice of the Contributions Plans.

58. If, however, the Commissioner did not have the jurisdiction referred to above, Satmell commenced these Class 4 proceedings on 7 June 2018 impugning the validity of the Contributions Plans.

Issues Common to Both the Class 4 and the s 56A Appeal Proceedings

59. The parties agreed that the following five issues were common to both the Class 4 and s 56A appeal proceedings:

1. first, whether the Contributions Plans (which had been approved by the Council and where public notice had been given in accordance with cl 31(4) of the EPA Regulation) required prior Ministerial approval or the completion of the review process set out in cl 5(3) of the amended 2012 Direction in order to be a contributions plan within the meaning of ss 7.1 and 7.18 of the EPAA (“the cl 5(3) of the amended 2012 Direction issue”);

2. second, whether on its proper construction the Council resolution constituted the making or approval pursuant to s 7.18 of the Contributions Plans, or constituted the making or approval (again pursuant to s 7.18) of the Contributions Plans subject to assessment by IPART and approval by the Minister (“the Council resolution issue”);

3. third, whether the Contributions Plans made provision for contributions not to exceed the monetary cap imposed on s 94 contributions under cl 6A of the amended 2012 Direction (“the monetary cap issue”);

4. fourth, whether the Council by its resolution in adopting the Contributions Plans prior to completion of the review process set out in cl 5(3) of the amended 2012 Direction, failed to comply with a direction given to it by the Minister contrary to s 7.17(2) of the EPAA, and therefore, made a contributions plan inconsistent with that Direction and contrary to cl 26 of the EPA Regulation. And whether, if the answer is ‘yes’ (that is, that Council failed to comply with the amended 2012 Direction), the Contributions Plans are invalid (“the cl 26 of the EPA Regulations issue”); and

5. fifth, whether the Council, in making the Contributions Plans prior to completion of the review process set out in cl 5(3) of the amended 2012 Direction, failed to have regard to the Practice Note. And whether, if the answer is ‘yes’ (that is, the Council failed to have regard to the Practice Notice), the Contributions Plans are invalid (“the Practice Note issue”).

The cl 5(3) of the Amended 2012 Direction Issue

60. This issue is raised in the Class 4 summons at grounds 1 and 2 and the s 56A appeal at grounds 4 and 5.

61. In raising this issue the Council argued that the Commissioner misconstrued the requirements of the EPAA and the EPA Regulations by accepting Satmell’s submission that a contributions plan (approved and notified by the Council in accordance with cl 31(4) of the EPA Regulations) required Ministerial approval to be a “contributions plan” within the meaning of ss 7.1 and 7.18 of the EPAA.

62. There is no express requirement in either the EPAA or the EPA Regulations that requires a contributions plan to be approved by the Minister.

63. Before the Commissioner, Satmell submitted that the requirement arose from the IPART review process as a result of cl 5(3) of the amended 2012 Direction and the Practice Note.

64. A similar argument was made before the Court during the Class 4 hearing and the s 56A appeal. Satmell’s argument was essentially eight-fold:

1. first, that s 7.17 of the EPAA requires that a consent authority to which a direction is given, which includes a direction with respect to the imposition of a condition requiring a monetary contribution (or, a contributions plan), must comply with the direction in accordance with its terms and that any condition imposed pursuant to a direction must equally be in conformity with the terms of that direction;

2. second, pursuant to s 7.18(3) of the EPAA, the EPA Regulations may make provision for the preparation and approval of contributions plans and cl 26(1) of those Regulations states that a contributions plan “must be prepared having regard to any relevant practice notes”;

3. third, cl 26(3) of the EPA Regulations mandates that the Council could not approve a contributions plan inconsistent with any direction given to it under s 7.17 of the EPAA;

4. fourth, there was neither, as was required by the Practice Note, review by IPART of the Contributions Plans (such review necessary because the Contributions Plans proposed contribution rates the exceeded the amount specified in the amended 2012 Direction) nor the implementation of any advice by the Minister after consideration of IPART’s review;

5. fifth, because the language of cl 26 of the EPA Regulations was mandatory, the preconditions in the Practice Note were a “fundamental element” of the contributions plan making scheme (citing Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527). Otherwise, referral to IPART was voluntary and the Practice Note has no work to do;

6. sixth, in the alternative, the Practice Note was, in any event, an instrument with the same statutory force as the amended 2012 Direction for the purpose of s 7.17 of the EPAA, and accordingly, compliance with its terms was obligatory by the Council; and

7. seventh, in the absence of any compliance with cl 5(3) of the amended 2012 Direction and the Practice Note, it followed that the adoption by the Council of the Contributions Plans was invalid.

65. In response, the Council denied that any requirement arose from either the amended 2012 Direction or the Practice Note, that the Contributions Plans had to be, in effect, ‘approved’ by the Minister in the manner described above prior to their adoption by the Council.

66. As noted by the Council, the role of the Minister is confined to advice following recommendations from an IPART review. At all times, however, it is the Council that makes a contributions plan.

67. Upon a proper analysis of the amended 2012 Direction and the Practice Note, it is only necessary for a contributions plan to be reviewed by IPART, and therefore, received by the Minister for the provision of advice, if the Council seeks to levy contributions above the cap imposed by the amended 2012 Direction. This is because, first, it is provided for in the express language of the Practice Note itself. Second, the amended 2012 Direction merely distinguishes “IPART reviewed contributions” from “specified contributions plans” (default plans when the cap regime ends in 2020); it is silent as to those contributions plans that are neither, including plans that are the subject of caps in the amended 2012 Direction. Accordingly, the contributions plans scheme contemplates that not all plans are required to be reviewed by IPART and provided to the Minister for advice.

68. Furthermore, having been reviewed by IPART, it is not, as Satmell submitted, axiomatic that the Minister must review the IPART recommendations and provide advice prior to the making by a council of a contributions plan. Had that been the intention of the Practice Note it would have explicitly said so. On the contrary, the Practice Note envisages that the Minister may or may not review an IPART reviewed contributions plan and that it is only where the Minister does in fact do so and provides advice, that such advice must be taken into consideration by a council prior to adoption (see, for example, section 2.3 of the Practice Note).

69. The language of the Practice Note, although seemingly internally inconsistent upon initial reading, confirms the analysis above. In section 2.1, the Practice Note states that councils “should submit” a draft contributions plans for IPART Review, but that they are only “required” to do so if the plan proposes a contribution rate that exceeds the maximum amount specified in a direction.

70. In the present case, the preparation of the Contributions Plans complied with cl 26 of the EPA Regulations. I do not accept on the evidence before the Court that the Council did not prepare the Contributions Plans not “having regard to any relevant practice notes” (cl 26(1)). Nor did the Council approve the Contributions Plans in a manner inconsistent with any direction given to it under s 7.17 of the EPAA (cl 26(3)).

71. On the contrary, the Contributions Plans recognised that the “indicative” contribution rates proposed by their terms could not be levied until the IPART process had been completed (because they would exceed the caps set out in the amended 2012 Direction) (for a more detailed explanation see the discussion of the monetary cap issue below and sections 1.19 and 8.7 in Contributions Plan 22L, mirrored at sections 1.19 and 6.7 of Contributions Plan 22W). At the very least, this recognition was an implicit contemplation of both the Practice Note and the amended 2012 Direction. Accordingly, in these circumstances the IPART review not having occurred did not render invalid the adoption of the Contributions Plans by the Council.

72. The effect of the operation of the exception provided for in cl 6(5) of the amended 2012 Direction (upon which Satmell relied) permits the imposition of contributions conditions in excess of the capped amounts set out in cls 6(2) or (3) of the amended 2012 Direction if the contributions plan is an IPART reviewed contributions plan or if the caps are applied (as expressly provided for in the Contributions Plans: see sections 1.19 and 8.7 of Contributions Plan 22L and sections 1.19 and 6.7 of Contributions Plan 22W). In the present case, the Contributions Plans not being IPART reviewed contributions plans and the caps being applied, cl 6(5) was not engaged.

73. In addition, cl 6A of the amended 2012 Direction permits the making and application of a contributions plan by a council that are not IPART reviewed contributions plans. In that instance, any condition imposing a contributions plan is subject to the caps on the amount of monetary contributions for the relevant period specified in the Table in cl 6A(2). Clause 6A does not require that a contributions plan to which the clause applies be an IPART reviewed contributions plan. Rather, the caps apply until 1 July 2020, upon which either the “specified contributions plan” (the Contributions Plan Area 20), or an IPART reviewed contributions plan, will apply. There is nothing to suggest that the Council was not cognisant of the caps in that clause.

74. In any event, properly construed, the amended 2012 Direction is not directed to the making of a contributions plan, rather, as s 7.17 indicates (s 7.17(1)(a)-(e)), it is primarily directed to the imposition of monetary contributions as a condition of the grant of development consent (see, for example, cl 6(1) “this clause applies to a development consent”, or similar words in cl 6A(1)). The amended 2012 Direction alone cannot, as Satmell strains to suggest, compel the Council to prepare and adopt only an IPART reviewed and Ministerially sanctioned contributions plan in circumstances where the monetary cap under the amended 2012 Direction is not exceeded.

75. Finally, should there be any lingering hesitation, the insertion of cl 6A(5) makes it clear that an IPART review is not an essential precondition to the making of all new contributions plans. The deliberate use of the words “to avoid doubt” in that clause makes it tolerably clear, in my opinion, that it is intended to operate from the date upon which it came into operation, namely, 28 July 2017.

76. Legislation that declares, explains or interprets the meaning of an earlier enactment provides an exception to the so-called presumption against regularity (Minogue v Victoria [2018] HCA 27; (2018) 92 ALJR 668 at [23]-[24] and Seafarers’ Retirement Fund Pty Ltd v Oppenhuis [1999] FCA 1683; (1999) 94 FCR 594 at [15]-[17]). The presumption is readily displaced by, as general principles of statutory construction all but compel, the unambiguous language of cl 6A(5). As the High Court unanimously stated in Minogue (at [24], emphasis added), “the opening words …’[t]o avoid doubt’, signify that the provision is declaratory of the intended operation of [the provision]” and therefore, that the enactment “operates from the date of commencement of” the provision. Moreover, “as this Court has observed, it is open to Parliament to enact such a law notwithstanding that it may affect or even render nugatory pending proceedings” (at [24]). The words “to avoid doubt” in cl 6A(5) are a strong textual indicator that cl 6A(5) was intended to explain, and accordingly be declaratory of, the existing state of the law as at the date of insertion.

77. Therefore, in circumstances where the Contributions Plans expressly recognised that the rates proposed by their terms could not be levied until the IPART process had been completed because they exceeded the caps set out in the amended 2012 Direction, and that pursuant to the properly construed terms of that Direction, not all new contributions plans had to be IPART reviewed, it follows that neither cl 5(3) of the amended 2012 Direction nor the Practice Note applied in this instance and the Contributions Plans were validly adopted by the Council. This issue must therefore be resolved in favour of the Council.

The Council Resolution Issue

78. The Council resolution issue was neither referred to in the Class 4 Summons nor raised as an issue in the Class 1 proceedings before the Commissioner. Nevertheless, the Court was prepared to entertain it.

79. Satmell’s contentions with respect to the Council resolution issue were two-fold:

1. first, that for the reasons identified in relation to the cl 5(3) of the amended 2012 Direction issue above, the Council’s ‘adoption’ (its resolution does not use statutory language) of the plans was not valid because the Plans could not operate until such a time as they were assessed by IPART and approved by the Minister; and

2. second, in any event, by its terms the Council resolution was conditional upon referral to IPART for assessment and approval (of that assessment) by the Minister. In addition to buttressing its position as to the operation of the statutory scheme discussed above, this was, of itself, sufficient to render the resolution one which did not serve to constitute an approval of the Contributions Plans for the purposes of s 7.18(1) of the EPAA.

80. The Court accepts neither contention. The first is dispensed with applying the reasoning adopted above.

81. As to the second, Satmell is correct to state that the Council expressly ‘adopted’ the Contributions Plans and did not expressly ‘approve’ them in strict conformity with the statutory language contained in s 7.18(1) of the EPAA and cl 31 of the EPA Regulations.

82. However, as the Council correctly submitted, in construing the Council resolution regard must be had to the observations of Hodgson JA in Westfield Management Ltd v Perpetual Trustee Ltd [2006] NSWCA 245 (at [36], [40] and [41]):

36.    Certainty as such was not a requirement for validity, though uncertainty could be an element of unreasonableness: Cann’s Pty. Limited v. The Commonwealth (1946) 71 CLR 210 at 227-8; Genkem Pty. Limited v. Environment Protection Authority (1994) 35 NSWLR 33 at 42. In any event, he submitted, as part of upholding the effectiveness of instruments, the Court would try to give them practical effect by avoiding uncertainty. Instruments such as consents and conditions of consent are to be construed, not as documents drafted with legal expertise, but to achieve practical results: Gill v. Donald Humberstone & Co. Limited [1963] 1 WLR 929 at 933-4; Driscoll v. J. Scott Pty. Limited (1976) 50 ALJR 528 at 531; Hecar Investments & Co. Pty. Ltd. v. Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323.

…

40.   In my opinion, the question of interpretation should be approached on the principles referred to by Mr. Walker. Just as a contract should be construed, if possible, so that its validity is preserved and uncertainty avoided (see for example Meehan v. Jones (1982) 149 CLR 571 at 589, and Upper Hunter County District Council v. Australian Chilling & Freezing Co. Limited (1968) 118 CLR 429 at 436-7), so also should instruments of this kind. Plainly, the Council intended to achieve something substantive by condition 56, and it should be construed if possible so as to give effect to that intention.

41    Another principle to be kept in mind in construing the condition is that a development consent is a document in rem, so that communications between the parties do not form part of the matrix relevant to construction: House of Peace Pty. Limited v. Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [23] and [27]. However, the Court can have regard to objective circumstances, including the physical circumstances, the plans accompanying the development application, and matters relating to title…

83. This reasoning was endorsed and applied in Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 (at [96]-[100] per Tobias JA) and in many cases subsequently in this Court.

84. Otherwise, the principles with respect to the construction of development consents, and by extension, the Council resolution ‘adopting’ the Contributions Plans are well known. They were recently usefully summarised by Payne JA in The Owners Strata Plan No. 4983 v Canny [2018] NSWCA 275; (2018) 19 BPR 39 (at [60]–[64] and [70]–[71]):

60.    First, the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks: Parramatta City Council v Shell Co of Australia Ltd[1972] 2 NSWLR 632 at 637 per Hope JA;

61. Secondly, a development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 per Mason P at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 per Spigelman CJ at [4].

62.    Thirdly, the enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and who is likely to wish to sell the land sooner or later: House of Peace per Mason P at [41].

63. Fourthly, a development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 per Hodgson JA at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160, per Tobias JA at [105].

64. Fifthly, as a general rule, a development consent, being a public document operating for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 per Meagher JA at [44]; Parramatta City Council vShell Co of Australiaat 637.

…

70.    An important observation in the present context was made in Ryde Municipal Council v Royal Ryde Homes by Else-Mitchell J, that:

“(324) …the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.”

71.    What must be discerned is the true meaning of the consent as the unilateral act of the Council, not the result of a bilateral transaction between the appellant and the Council. It is for that reason that development consents are required to be framed in clear terms and any relevant conditions specified with certainty. I agree with Else-Mitchell J that any lack of clarity or certainty is the responsibility of the Council and it must take the consequences of any failure to specify accurately or in detail what is consented to.

85. In Allandale Blue Metal Pty Ltd v Roads and Maritime Services[2013] NSWCA 103; (2013) 195 LGERA 182 Meagher observed that (at [42]-[44]):

42.    The relevant principles are, in some respects, more easily stated than applied. The task is to construe the document constituting the consent mindful of the fact that the approval is a unilateral act of the consent authority which has an enduring function. The consent is not the result of a bargaining process between two or more parties, and is not personal to the applicant but enures for the benefit of subsequent owners and occupiers. Its meaning must be determined objectively, having regard to these matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority. To that extent, the principles of construction appropriate to contracts, which provide that in the case of ambiguity or uncertainty reference may be made to surrounding circumstances known to the relevant parties, do not apply: cf CodelfaConstruction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337 at 352; Toll (FGCT) Pty Ltd vAlphapharmPty Ltd [2004] HCA 52; 219 CLR 165 at [40], [41].

43. The extrinsic evidence to which reference legitimately may be made when construing a public document, such as a development consent, is more limited. Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication: see generally, Ryde Municipal Council v The Royal Ryde Homes (1970) 91 WN (NSW) 440 at 443; Auburn Municipal Council vSzabo (1971) 67 LGRA 427 at 433-434; and the decisions of this Court in Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407-408; House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [23], Winn v Director-General of National Parks & Wildlife [2001] NSWCA 17; 130 LGERA 508 at [2], [4], [199]; and Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439 at [1], [3], [35]-[36]. See also Adelaide Corporation Pty Ltd v City of Charles Sturt [2008] SASC 260; 162 LGERA 106 at [33], [49], [50].

44. Evidence may also be led to identify a thing or place referred to in the consent: Slough Estates Ltd v Slough Borough Council (No 2) [1971] AC 958 at 962; Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357 at 370-371; Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44 at 50-51; Sydney Serviced Apartments Pty Ltd at 407. That evidence is not led to vary the consent but to identify the thing referred to in it. Evidence as to the nature or physical features of the land or site may also be admissible for that purpose: Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632 at 637.

86. In Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 Bathurst CJ said (at [35]):

35.   Although I accept, as Leeming JA pointed out in BunderraHoldings at [56], quoting Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [36], that “conditions of consent are to be construed not as documents drafted with legal expertise, but to achieve practical results”, I am of the opinion that, nevertheless, principles of statutory construction can be of assistance in construing a development consent. In particular, the development consent should be construed to produce a “harmonious” result and to “give meaning to every word” of its provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]-[71].

87. These observations were reiterated most recently in Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147 where Basten JA (at [46]-[80]), after referring to the statutory scheme, further stated that (at [77]-[78]. Similar remarks were made by Preston J at [301]–[305]):

77. Further authorities were considered by this Court in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [38]. With one qualification, the statements as to authority contained in those passages may be accepted. The qualification is that it is no longer appropriate to have regard to what this Court (in my judgment) said in Weston Aluminium [39] that judgment having been reversed by the High Court with reasoning incorporating reference to the use of the development application in construing consent, as noted above.

78.    As noted by Meagher JA in Allandale at [48] there appears to be much common sense in the observations of Doyle CJ in OakdenShopping Centre Pty Ltd v City of Port Adelaide Enfield:[40]

“It is the authorisation (here embracing a consent or an approval) the meaning of which is in question. But usually, perhaps always, a development authorisation will be meaningless without reference to the plans or proposals submitted by the applicant. In principle it must be permissible, when deciding the meaning, scope and effect of a development authorisation, to refer to the plans or other documents constituting the proposal submitted for authorisation. This must be permissible when, as here, the development authorisation makes express reference to those plans, by referring to ‘details and plans’ submitted as part of the application.”

While the case may have been capable of disposition on the basis stated on the last sentence set out above, the Chief Justice was stating a broader principle in the preceding sentences.

88. Applying these principles to the interpretation of the Council resolution, the intention of the Council in ‘adopting’ the Contributions Plans was obvious: to approve the Contributions Plans. Its failure to use either the precise language of s 7.18 of the EPAA or cl 31 of the EPA Regulations does not result in invalidity.

89. The real purported vice that Satmell complains of was item 3 of the resolution that stated, “submit both plans to IPART and the Minister for Planning and Environment for assessment and approval.” This, according to Satmell, made the resolution adopting the Contributions Plans conditional upon the relevant assessment and approval. Satmell submitted that the language of the Council resolution validated its construction of the statutory scheme.

90. I do not agree with Satmell’s characterisation of the Council resolution. Read as a whole and viewed in conjunction with a number of objective circumstances (steps undertaken by the Council), I accept the Council’s submission that it intended to approve the Contributions Plans unconditionally. Were it otherwise, there would have been little utility, for example, in advertising the coming into force of the Contributions Plan on 7 March 2018.

91. The Council may be taken to be cognisant of the amended 2012 Direction and that from 1 July 2020 onwards, the caps in cl 6A would be phased out and cease to exist and that it would need to have in place an IPART reviewed contributions plan to levy rates in excess of the cap. This is the preferable meaning to be ascribed to item 3 in the Council resolution. As Preston J opined recently in City of Ryde Council v State of New South Wales [2019] NSWLEC 47 (at [98]):

98. Consent authorities under the EPA Act have been held to have brought to bear their general knowledge of the planning law and environmental planning instruments in their consideration and determination of development applications: see Parramatta City Council v Hale (1982) 47 LGRA 319 at 346 (“general knowledge”); Somerville v Dalby(1990) 69 LGRA 422 at 429 (“individual expertise and local knowledge”); Clifford v Wyong ShireCouncil(1996) 89 LGERA 240 at 249 (“local knowledge”); Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373 (“general knowledge of their principal planning instrument”); Franklins Ltd v Penrith City Council andCampbells Cash & Carry Pty Ltd[1999] NSWCA 134 at [26] (“general knowledge of their principal planning instrument”); Manly Council vHortis(2001) 113 LGERA 321 at 333 (“general awareness of the LEP”) and Gee v Sydney City Council (2004) 137 LGERA 157 at 170-171 (“local knowledge” and understanding of the obligations under a particular provision of the LEP).

The Monetary Cap Issue

92. This issue is raised explicitly in ground 1 of the Class 4 summons and implicitly in grounds 4 to 7 of the s 56A appeal.

93. This issue may be succinctly put, namely, whether properly construed the Contributions Plans contain (at sections 6.7 and 8.7, of Contributions Plan 22W and 22L, respectively) provision for contributions that exceed the monetary cap imposed on s 94 contributions under cl 6A of the amended 2012 Direction.

94. The issue may be equally economically disposed of: when the Contributions Plans are read as a whole, they do not.

95. Sections 1.19 (of the Contributions Plans), 6.7 (of Contributions Plan 22W) and 8.7 (of Contributions Plan 22L) expressly recognise the caps provided for in the amended 2012 Direction and unambiguously state that (in section 1.19) the Direction has the “effect of preventing the Council from making a s94 contributions plan that authorises the imposition of conditions of consent requiring monetary s94 contributions…in excess of the monetary cap specified by or under the Direction.”

96. Therefore, while ultimately (that is, after 1 July 2020 and only upon an IPART review and Ministerial consideration) the Contributions Plans may permit contribution greater than the cap provided in cl 6A of the amended 2012 Direction, presently they do not do so.

The cl 26 of the EPA Regulations Issue

97. This issue is raised in ground 5 of the s 56A appeal and ground 1 of the Class 4 summons.

98. As stated in its consolidated written submissions dealing with both sets of proceedings, Satmell’s position is that for the reasons identified in relation to the cl 5(3) of the amended 2012 Direction issue, the adoption by the Council of the Contributions Plans was not valid “in that they could not operate until such time as they are assessed by IPART and approved by the Minister”.

99. For the reasons already given, in my view, there was neither a failure to comply with a direction given to it by the Minister contrary to s 7.17(2) of the EPAA nor did the Council make a contributions plan that was contrary to cl 26 of the EPA Regulations. That is, properly construed, the amended 2012 Direction was not concerned with the making of a contributions plan but the imposition of conditions, and therefore, there was no failure by the Council to comply with the amended 2012 Direction and nor did the Council make the Contributions Plans contrary to s 7.17(2) of the EPAA.

100. Although strictly unnecessary to decide given the conclusion reached above, the issue of whether failure to comply with the amended 2012 Direction resulted in the invalidity of the Contributions Plans falls to be determined in accordance with the principles in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [91]-[93]):

91.    An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied there is not even a ranking of relevant factors or categories to give guidance on the issue.

92.    Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case:

"substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not."

93.    In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".

101. As ever, the question is one of statutory interpretation. While the result in each case is dependent upon the terms of the legislation and the particular circumstances in which the legislation is applied, there are nevertheless relevant examples of where a failure to comply with a ministerial direction did not lead to invalidity. The decision in Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148 provides a good analogous example. In that case, it was held (the plurality comprising of Spigelman CJ and Shellar JA) that a failure to comply with s 117 of the EPAA (as it then was), which provided that a Minister may direct a council to exercise functions in relation to the preparation of a draft local environmental plan (“LEP”) in accordance with principles specified in a ministerial direction, did not result in invalidity of the LEP (ultimately it was held for different reasons that the LEP was invalid). Section 117(3) mandated that the council “shall comply” with the direction in accordance with its terms. The factors that the Court of Appeal took into account included:

1. that the statutory provision used amorphous terminology such as “principles” which did not have a “rule-like quality which can be easily identified and applied” (Project Blue Sky at [95]) and which left “room for widely differing opinion” (at [22]-[23]);

2. that to hold the decision invalid would result in serious public inconvenience (at [25]-[29]);

3. the obligation was created by the Minister by issuing the direction and not by legislation or delegated legislation (at [38]);

4. the Minister was in a position to determine the non-complying conduct (at [39]); and

5. invalidity for non-complying conduct was not necessary or desirable to ensure compliance (at [40] and [43]-[45]).

102. Smith v Wyong Shire Council was applied by the Court in Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302 to hold that determinations by the Minister for Local Government to increase the general income of Tweed Shire Council (in accordance with which rates were increased) were not invalid notwithstanding that, pursuant to guidelines issued by the relevant Minister, the council was required to demonstrate to the Minister that there was community support, but in purporting to do so it misleadingly understated to the community the effect of the proposed rate increases. The Court held that although the guidelines were not followed because the community was misled as to the effect of the rates proposed to be levied, the determinations were nonetheless valid. The Court’s reasons were as follows (at [89]-[93] per Biscoe J):

89    The statutory direction specifying “principles” considered in Smith is analogous to the statutory “guidelines” under s 508A(3).

90    Section 508A(3) is in terms directed to, and imposes an obligation on, the Minister, not on the council. The only obligation of the council is under s 23A, which is not in issue: the council must take any relevant guidelines “into consideration” before exercising any of its functions. One of the council’s functions is to make an application under s 508A(1). Although there is no express obligation on a council to comply with any applicable guidelines, a council is at risk if its application is not in accordance with guidelines applicable to a s 508A(1) application because the Minister may reject the application for that reason or may vary or revoke the resultant determination (s 508A(9)(b)). The applicant’s case is that there is a more drastic consequence of a non-complying application, namely, that any purported determination is void.

91    There are competing considerations as to whether a legislative purpose is that a s 508A(1) determination is invalid if an application does not comply with applicable guidelines referred to in s 508A(3). Three considerations favour an affirmative answer. The first is the use of the word “only” in s 508A(3). Secondly, the process of public consultation to which the Guidelines are relevantly directed is consistent with one of the important purposes of the Local Government Act “to encourage and assist the effective participation of local communities in the affairs of local government”: s 7(c). Thirdly, s 508A is a gateway to the imposition of rates and charges – that is, taxes – and it is a fundamental right of a citizen not to be taxed except in accordance with parliamentary authority.

92    However, a number of factors pointing to the opposite conclusion, some of which Spigelman CJ identified in Smith,are also present:

(a) “Guidelines” (like “principles” in Smith) is an amorphous, imprecise term. “Guidelines” suggest that there may be acceptable alternatives. “Guidelines” do not have a rule-like quality which can be easily identified and applied. What constitutes “accordance” with the applicable guidelines referred to in s 508A(3) is a matter on which reasonable minds may differ. 

(b)    The Act does not mandate that councils comply with applicable guidelines. Rather, it mandates that a council must take any relevant guidelines “into consideration” before exercising any of its functions: s 23A(3). Section 508A(3), in terms, is directed not to councils but to the Minister. It directs the Minister only to approve an application that is in accordance with applicable guidelines. To employ old classifications discarded in Project Blue Sky , it suggests that s 508A(3) is a directory rather than mandatory. That is, it tells councils how the Director-General likes applications to be made; and may remind them that under s 23A they have to take any relevant guidelines into consideration and that, if they do not, there are risks of rejection of the application or revocation or variation of the resultant determination. 

(c)    The power given to the Minister to revoke or vary a determination if the council has contravened any applicable guidelines assumes that the determination is valid: s 508A(9)(b). 

(d)    This is not a case in which the purpose of s 508A can only be achieved by invalidating the result because the Minister is empowered to determine the fate of an application that is not in accordance with applicable guidelines by declining to make a determination or by revoking or varying the resultant determination: s 508A(1) and (9)(b). The purpose of s 508A(3) can be achieved in the other ways, for which the legislature has provided, short of invalidating the result of a discordant application irrespective of the circumstances or resulting injustice. Failure of an application to accord with applicable guidelines potentially may cover a wide range of defaults – minor, inadvertent or marginal – because the power of the Director-General to make guidelines is unfettered. Invalidity, however, applies irrespective of the circumstances and regardless of the merits of the individual case. That suggests that the risk of an application being rejected or a determination being revoked or varied – rather than invalidity – is the legislature’s way of deterring councils from making Guidelines discordant applications. The legislature has preferred to vest remedies in the Minister. 

93    Weighing the competing factors, I have come to the conclusion that it was not a legislative purpose that a guidelines discordant application should result in invalidity of the resultant determination. The factors suggesting that it was not preponderate. Accordingly, the first limb of the applicant’s case is unsuccessful.

103. Having regard to the proper construction of the statutory regime, the following indicia tend towards a finding that even if the Contributions Plans required assessment by IPART and approval by the Minister as claimed by Satmell, a finding of invalidity was not axiomatic in circumstances where:

1. by their terms, s 7.17(2) and (3) and cl 26(3) do no more than regulate the exercise of functions already conferred upon the Council in ss 7.11, 7.12 and 7.18. Clause 26(1) merely states that a contributions plans “must be prepared having regard to” the Practice Note. This is an indicator that tends strongly against any conclusion that a purpose of s 7.17 and cl 26 was that their breach was intended to invalidate a resolution to make a contributions plan contrary to their terms;

2. both the amended 2012 Direction and the Practice Note were (similar to Smith and Sharples) written in amorphous and imprecise terms which gives rise to acceptable alternatives. Read neither separately or together did they have a “rule like quality that can be easily identified and applied”;

3. the Council was fully cognisant of, and moreover, applied the caps in the amended 2012 Direction (see the sections of the Contributions Plan 22W and Contributions Plan 22L referred to above);

4. cl 6A(5) had been inserted into the amended 2012 Direction by the 2019 Direction to confirm for the avoidance of doubt (“to avoid doubt”) that the making of the new Contributions Plans was nevertheless subject to the caps in cl 6A(2) irrespective of whether or not the new Plans had been reviewed by IPART;

5. there is a substantial likelihood of inconvenience if the Contributions Plans are declared to be invalid because contributions have already been collected by the Council since the Plans came into force on 7 March 2018. As the Council noted, “courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be the result of the invalidity” of the enactment (Project Blue Sky at [97]). Section 7.20(4) is of no assistance in this regard because amendment or repeal will not affect the previous operation of the plan;

6. any obligation for the Contributions Plans to be IPART reviewed and referred to the Minister was created by the Minister issuing the amended 2012 Direction together with the Secretary issuing the Practice Note;

7. invalidity is neither desirable, given the practical consequences, nor necessary to achieve compliance. If necessary the Contributions Plans can be amended or repealed pursuant to s 7.20(4) of the EPAA.

104. The following contrary arguments may, however, be put:

1. cl 26(3) of the EPA Regulations and s 7.17(2) and (3) of the EPAA by their express language mandate (“must not”) that the Council comply with any direction issued by the Minister;

2. on one view, the non-complying conduct arose because of the Council’s failure to comply with cl 26(3) of the EPA Regulations;

3. although the Contributions Plans can be amended or repealed under s 7.20(4) of the EPAA, such amendment or repeal does not affect the previous operation of the Plans or anything duly done under the Plans, which means that absent a declaration of invalidity, whatever monies have been paid pursuant to the Contributions Plans by Satmell (and others) are retained by the Council; and

4. under s 2(1) of the Recovery of Imposts Act 1963 third parties may be precluded from recovering any monetary contributions levied by the Council under the invalid Contributions Plans, thereby negating any concern with respect to the serious practical consequences of such a declaration.

105. Weighing the competing factors, I am of the opinion that, on balance, it was not the legislative purpose that the Council’s alleged non-compliance with the amended 2012 Direction should result in the invalidity of the Contributions Plans.

The Practice Note Issue

106. This issue is raised in the s 56A appeal summons at ground 6 and the Class 4 judicial review proceedings summons at ground 2.

107. Satmell’s consistent submission was that the Council’s adoption of the Contributions Plans was not valid because they could not operate until the Plans had been assessed by IPART and approved by the Minister.

108. For the reasons already discussed in detail above, I do not accept this submission. Clause 26(1) of the EPA Regulations merely required that the Council to prepare the Contributions Plans “having regard to” the Practice Note.

109. In addition, it is plain in this regard that, in mischaracterising the process as requiring that the Contributions Plans be made “in accordance with” the Practice Note (at [117(3)] of her judgment), the Commissioner misapprehended the task required of her during the Class 1 appeal. The language of “having regard to” is less prescriptive and less onerous than the language of “in accordance with”. While there is no question that the Practice Note was a “relevant practice note” for the purpose of cl 26(1) of the EPA Regulations, and moreover, that the Contributions Plans “must” be prepared in the manner prescribed, cl 26(1) does not mandate compliance with the Practice Note.

110. As the Council contended, this was unsurprising given that the Practice Note is essentially a policy or guideline issued by the Secretary and lacks legislative force.

111. Satmell argued that although the Practice Note was not a species of delegated legislation (clearly it was not: see Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58 at 82 per Latham CJ; Minister for Industry and Commerce v Tooheys [1982] FCA 135; (1982) 60 FLR 325 at 331 and Latitude Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 110 ALR 209 at 228-229 per French J, as he then was), it was nevertheless an “instrument” as that term is defined in of the Interpretation Act1987, and that therefore, it gained “legislative impetus by its incorporation via the legislation. The regulation, in terms, contemplates a creature that is this creature” (T28.25).

112. Section 3(1) of the Interpretation Act (with a degree of circularity that is enough to induce motion sickness) defines the term “instrument” as:

instrument means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument.

113. By analogy with the reasoning in Wechsler v Auburn Council (1997) 130 LGERA 134 (at 137 per Talbot J), MLC Properties v Camden Council [1997] NSWLEC 130; (1997) 96 LGERA 52 (at 59 per Lloyd J) and Westfield Management Limited v Direct Factory Outlets Homebush (No 3) [2004] NSWLEC 688 (at [41] per Pain J), Satmell submitted that because the Practice Note was an “instrument” for the purpose of the Interpretation Act (although, it should be noted, Lloyd J did not go this far in Westfield), the consequence was that, applying the principles in Allendale, the Practice Note was incorporated into the EPA Regulations and could not be “ignored”.

114. The approach posited by Satmell finds no support in law. The cases referred to above do not assist it. The Practice Note was not any species of legislation and cannot be used to construe either cl 26 of the EPA Regulation or ss 7.17 and 7.18 of the EPAA. If it is generally wrong to construe an Act by reference to delegated legislation made pursuant to it (Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 at [19] and Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 at [56]), it is even less permissible to use a guideline, practice note or some other non-legislative policy document, as an aid in the execution of the statutory interpretative task.

115. However, this is not to say that the Practice Note could be, to use Satmell’s words, “ignored”. Plainly it could not in light of the prescription contained in cl 26(1) of the EPA Regulations that “regard” had to be had to it.

116. As to the meaning of the phrase “having regard to” in cl 26(1), this expression is used in legislation to control the scope of a discretion otherwise conferred on a decision-maker, in this instance, the Council. The phrase has been consistently construed to mean that a decision-maker must take into account the prescribed matter and give weight to it as an element of the decision-making (see the cases discussed in D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) [12.15]).

117. Satmell again argued that the phrase meant that the Practice Note had to be a matter of fundamental or focal consideration by the Council (Warkworth Mining at [191]-[235]). In Warkworth Mining the Court of Appeal referred to Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 (at [54] per Sackville J, as he then was) in relation to the phrase “have regard to” (at [221]):

221. In Singh v the Minister for Immigration [2001] FCA 389, Sackville J (as his Honour then was), at [54], observed that the phrase “have regard to” was capable of different meanings depending on its context, with one possible meaning being that weight must be given to a specified matter “as a fundamental element” in making a determination. His Honour observed, however, that the phrase can simply mean to give consideration to something: see Shorter Oxford Dictionary. In Singh, the relevant section of the Migration Act 1958 (Cth) required the Minister to have regard, not only to one or two specific matters, but to “all of the information in the application” for a visa. His Honour observed that the information may range over a wide field, take many different forms, and be of varying significance. This was different from the standard under consideration in Sean Investments, which, as Sackville J observed, required the decision-maker to have regard to one matter only, a fact that Mason J considered to be important in construing the provision.

118. Their Honours went on to note that (at [226]):

226.    These cases do no state an inflexible legal rule of construction as to the weight to be accorded to all statutory provisions which require a particular matter to be considered or taken into account by a decision-maker. The result in each case was dependent upon the terms of the legislation and the particular circumstances in which the legislation was applied.

119. Applying this reasoning, the term “having regard to” in the present context does not mean, as Satmell suggested, that the Practice Note had to be given such primacy that the Contributions Plans were required to be referred to IPART for review. In other words, the words “having regard to” did not transmogrify an obligation to take into account the Practice Note into a requirement that its contents be adhered to.

120. The Practice Note permits the submission of a contributions plan (or a draft thereof) to IPART for review similar to the amended 2012 Direction. But, as explained above, the review by IPART is only necessary pursuant to the Practice Note if the Council wants to levy contributions greater than the cap set in the amended 2012 Direction. In circumstances where the Council was aware of the proscription and applied the caps (both of which were expressly referred to in the Contributions Plans) there can be no argument that the Council did not “have regard to” the Practice Note in making the Contributions Plans. That the Council did not refer the Contributions Plans to IPART or the Minister prior to their adoption did not result in any breach of cl 26(1) of the EPA Regulations.

119. Even if contravention of cl 26(1) of the EPA Regulations could be demonstrated by Satmell, applying the interpretative principles set out above (see at [100]-[102]), I do not consider that breach of cl 26(1) of the EPA Regulations would give rise to invalidity. This is because:

1. cl 26(1) regulated the exercise of a function already conferred upon the Council. It did not impose an essential precondition to the exercise of that power;

2. by its terms, cl 26(1) did not require compliance with the Practice Note, only that, for the reasons given above, regard was had to it;

3. the Practice Note was not issued by the legislature but by the Secretary;

4. the Practice Note was an explanatory document accompanying the amended 2012 Direction. It is analogous to the documents at issue in Smith and Sharples;

5. the Council was fully cognisant of the proscription against exceeding the caps set out in the amended 2012 Direction and it applied those caps;

6. the terms of the Practice Note were written in sufficiently imprecise terms and lacked the necessary “rule-like quality”;

7. invalidity would result in serious inconvenience for the reasons already explained; and

8. invalidity was not necessary to achieve compliance.

The Class 4 Summons Must be Dismissed With Costs

122. Having determined all of the issues, and as a corollary, the grounds raised in the Class 4 summons adverse to Satmell, it follows that the Class 4 summons must be dismissed.

123. Because costs generally follow the event in Class 4 proceedings, and there being no reason to depart from the ordinary rule, Satmell must pay the Council’s costs of these judicial review proceedings.

124. Had, however, the result been different, then I would have had to deal with the submission by the Council that Satmell ought not be awarded all of its costs by reason of the large volume of mostly irrelevant documentation included in the evidence bundle. The Court would have readily acceded to argument. As the affidavit of Ms Lauren Smith sworn 28 February 2019 indicates (a solicitor employed by the Council’s solicitors), eight large volumes of tender bundle documents were served on the Council by Satmell in respect of the Class 4 proceedings. Correspondence passing between the parties (annexed to her affidavit) did little to reduce the wholly unnecessary paper burden.

125. At a pre-trial mention, the Court, confounded at the volume of proposed documentation to be adduced in both sets of proceedings having regard to the issues raised by the Class 4 proceedings and the s 56A appeal, ordered that both the court books and the evidence books be uplifted from the file and that all irrelevant material, of which there appeared to be a considerable amount, be removed. Having enjoyed only limited success by making this order, however, at the hearing the Court further ordered that all documents proposed to be relied upon by the parties be tendered individually. This did not materially delay the duration of the hearing and resulted in a solitary, slender volume of relevant material put before the Court.

Orders

126. In conformity with the reasons contained in this judgment the orders of the Court are that:

1. the summons is dismissed;

2. the applicant is to pay the respondent’s costs of the Class 4 proceedings; and

3. the exhibits are to be returned.

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Amendments

01 July 2019 - Amended to fix formatting error.

10 July 2019 - typographical error in paragraph 20

Decision last updated: 10 July 2019