Vitality Care Pty Ltd v Director-General, Department of Natural Resources

[2006] NSWLEC 506

Reported Decision: 151 LGERA 15

Land and Environment Court

of New South Wales

CITATION:

Vitality Care Pty Ltd v Director-General, Department of Natural Resources [2006] NSWLEC 506

PARTIES:

APPLICANT:
Vitality Care Pty Ltd

RESPONDENT:
Director General Department of Natural Resources

FILE NUMBER(S):

40518 of 2006

CORAM:

Biscoe J

KEY ISSUES:

Construction and Interpretation :- development consent issued under Environmental Planning and Assessment Act 1979 permitted clearing of native vegetation - Native Vegetation Act 2003 subsequently came into force which prohibited clearing of native vegetation except in accordance with a development consent granted under that Act or a property vegetation plan - whether applicant could lawfully clear the land without a development consent or property vegetation plan under the latter Act - whether there was an accrued or acquired right which was not affected by the repeal by the latter Act of the Native Vegetation Conservation Act 1997.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 Pt 4
Interpretation Act 1987 ss 5, 30(1)(c)
Native Vegetation Act 2003 ss 5-7, 9, 10, 12-24, 52, 54, Sch 1 Pt 2 cl 14, Sch 3 Pt 2 cl 3
Native Vegetation Conservation Act 1997 ss 3, 5, 6, 9, 17, 21, 23, Sch 1

CASES CITED:

Attorney-General for the State of Queensland v Australian Industrial Relations Commission (2002) 213 CLR 485;
Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557;
Carr v Finance Corporation of Australia Limited [No 2] (1982) 150 CLR 139;
Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27;
Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178;
Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270· Esber v The Commonwealth (1991) 174 CLR 430;
Hanwood Pastoral Co Pty Ltd v Director-General, Department of Natural Resources (2005) 144 LGERA 139;
Ku-ring-gai Municipal Council v Attorney-General for the State of NSW (1957) 99 CLR 251;
Mathieson v Burton (1971) 124 CLR 1;
Maxwell v Murphy (1957) 96 CLR 261;
West v Gwynne [1911] 2 Ch 1;
Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816

DATES OF HEARING:

10/08/2006

 
DATE OF JUDGMENT: 

08/18/2006

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Clay, barrister
SOLICITORS
Kell Moore

RESPONDENT:
Mr T S Hale SC
SOLICITORS
Department of Natural Resources

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

18 August 2006

40518 of 2006

VITALITY CARE PTY LTD v DIRECTOR-GENERAL, DEPARTMENT OF NATURAL RESOURCES

JUDGMENT

HIS HONOUR:
INTRODUCTION

1 The township of Henty is approximately midway between Wagga Wagga and Albury. A corner of the township next to the golf course was chosen by the applicant for the construction of a retirement village and aged care facility. The applicant obtained a development consent for that development. Implementation of the development consent involves the clearing of native vegetation, which comprises nine trees and some fairway grasses on part of the golf course subsumed by the development. After the development consent was granted the Native Vegetation Act 2003 (NSW) (NV Act) came into force. By s 52, it repealed the Native Vegetation Conservation Act 1997 (NSW) (NVC Act). The new NV Act prohibits the clearing of native vegetation without the consent of the Minister administering that Act.

2 The issue is whether under the NV Act the applicant must obtain the Minister’s consent before clearing the native vegetation.

3 The Interpretation Act 1987 (NSW) provides that, subject to a contrary intention, the repeal of an Act does not affect any right or privilege acquired or accrued under that Act: ss 30(1)(c) and 5.

4 The case turns on whether the applicant had an acquired or accrued right or privilege because of the combined effect of the development consent and s 23(1) of the repealed NVC Act which provided:

23 Clearing not affected by other instruments or Act
(1) If native vegetation or State protected land is, or is about to be, cleared in accordance with development consent as required by this Division, that clearing cannot be prohibited, restricted or otherwise affected by an environmental planning instrument or by the provisions of any Act (other than this Act or the EPA Act) to the extent to which that instrument, or those provisions, prohibit, restrict or otherwise affect that clearing.

THE FACTS

5 There are few relevant facts and they are not in issue

6 In September 2005 the applicant made a development application to Greater Hume Shire Council (the Council) for development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for a retirement village and aged care facility, together with community title subdivision, pursuant to State Environmental Planning Policy (Seniors Living) 2004. The application was made in respect of the land known as Lots 189, 190 & 191 in DP 753741, part of Lot I in DP 110327 and part of proposed closed road Rosler Parade, Henty.

7 Part of the land is zoned 2(v) Village and part is zoned 1(a) General Rural pursuant to the Culcairn Local Environmental Plan 1998. Both the NVC Act and the NV Act exclude land zoned 2(v) Village from their operation, but apply to land zoned 1(a) General Rural: see NVC Act s 9 and Schedule 1; NV Act s 5(1)(c) and Schedule 1 Part 3 cl 14.

8 Part of the land zoned 1(a) General Rural is part of Henty Golf Course. The native grasses are the fairway grasses. The zone boundary between the village zone and the rural zone was through part of the golf course.

9 On 30 November 2005 the council granted development consent to carry out the development. Since that time the applicant has taken steps to implement the consent including satisfying a deferred commencement condition and taking all legal steps necessary to commence the development.

10 The respondent, by its agent the Murrumbidgee Catchment Management Authority, became involved in December 2005. The intervention of the agent delayed the implementation of the consent because the agent formed the view that a consent was required under the NV Act to carry out the clearing of the native vegetation necessary for the implementation of the development consent. Accordingly, on the view of the agent, if the applicant had proceeded it would have committed a criminal offence under the NV Act.

NATIVE VEGETATION CONSERVATION ACT 1997 (NSW)

11 The NVC Act operated until its repeal by the NV Act on 1 December 2005. The objects of the NVC Act included providing for the conservation of native vegetation and preventing inappropriate clearing of vegetation: s 3 "Clearing" was defined broadly in s 5 to include removal and substantial damaging or injuring of native vegetation. "Native vegetation" was defined as comprising all trees, understorey plants, groundcover and plants occurring in a wetland which are indigenous: s 6.

12 Part 2 (ss 13-23) of the NVC Act set out provisions relating to consent for clearing native vegetation. Sections 17, 21 and 23 relevantly provided:

(1) A person who contravenes this Part is guilty of an offence under this Act.
(2) Section 126(1) of the EPA Act (Penalties) applies to any such offence in the same way as it applies to an offence against that Act.

21 Clearing native vegetation on land not subject to plan

…
(2) A person must not clear native vegetation on any land except in accordance with:
(a) a development consent that is in force, or
(b) a native vegetation code of practice.

23 Clearing not affected by other instruments or Acts

(1) If native vegetation or State protected land is, or is about to be, cleared in accordance with development consent as required by this Division, that clearing cannot be prohibited, restricted or otherwise affected by an environmental planning instrument or by the provisions of any Act (other than this Act or the EPA Act) to the extent to which that instrument, or those provisions, prohibit, restrict or otherwise affect that clearing.
…

NATIVE VEGETATION ACT 2003 (NSW)

13 The NV Act was introduced as part of a parcel of legislation which also included the Catchment Management Authorities Act 2003 (NSW) and the Natural Resources Commission Act 2003 (NSW). Its objects are similar to those of the NVC Act.

14 The NV Act also contains similar exclusions (s 5) and similar definitions of “native vegetation” (s 6) and “clearing native vegetation” (s 7). The NV Act creates and defines two principal types of vegetation: “regrowth” and “remnant native vegetation” (s 9). Also defined is “protected regrowth” (s 10).

15 Part 3 (ss 12-24) of the NV Act sets up a scheme whereby native vegetation can only be cleared in accordance with a development consent granted in accordance with the NV Act; the Minister is the relevant consent authority; and the development consent procedures are those contained in Part 4 of the EPA Act. Sections 12 to 14 of the NV Act provide:

12 Clearing requiring approval

(1) Native vegetation must not be cleared except in accordance with:
(a) a development consent granted in accordance with this Act, or
(b) a property vegetation plan.


(2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.

(3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4.

13 Minister is consent authority for clearing

For the purposes of the EPA Act, the Minister is the consent authority for any development application made under that Act for any clearing of native vegetation that requires development consent because of this Act.


14 Granting of development consent

(1) If development consent is, because of this Act, required to clear native vegetation, Part 4 of the EPA Act applies to the granting of the development consent, subject to this Division.


(2) In determining an application for development consent under this Act, the Minister is to have regard to any relevant provisions of catchment action plans of catchment management authorities, and to other matters required by the regulations.

(3) Development consent for broad-scale clearing is not to be granted by the Minister unless the clearing concerned will improve or maintain environmental outcomes.
…

16 Section 12 of the NV Act is in different terms to s 21(2) of the NVC Act. The development consent referred to in s 12 of the NV Act is a development consent granted "in accordance with this Act". In contrast, sub­section 21(2) of the NVCAct simply referred to "a development consent that is in force".

17 Schedule 3 of the NV Act (see s 54) relevantly provides in Part 2 Clause 3:

3 Development consents under former Act [NVC Act]
A development consent for clearing granted in accordance with the 'former Act (before its repeal) by the Minister administering that Act is taken to be a development consent granted in accordance with this Act.

18 There is no equivalent provision in relation to a development consent which permits clearing granted in accordance with the EPA Act.

19 Section 30 of the Interpretation Act 1987 (NSW) relevantly provides:

30(1) The amendment or repeal of an Act or statutory rule does not:

…

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or…

20 Section 5(2) provides:

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

APPLICANT’S SUBMISSIONS

21 The applicant submits that s 30(1)(c) is reflective of the common law rule that a statute is deemed not to have a retrospective operation: Maxwell v Murphy (1957) 96 CLR 261 at 267; see also Wilson v First County Trust Ltd (No. 2) [2004] 1 AC 816 at 876-881. The applicant submits that the right in s 30 is not a narrow conception of a right (Carr v Finance Corporation of Australia Limited [No 2] (1982) 150 CLR 139 at 150-151), nor is it a mere hope or expectation (Mathieson v Burton (1971) 124 CLR 1 at 23) and that a statute must not be construed so as to change the legal character, or the legal consequences, of past events and transactions (Ku-ring-gai Municipal Council v Attorney-Generalfor the State of NSW (1957) 99 CLR 251 at 269).

22 The applicant submits that it had an acquired or accrued right or privilege, within the meaning of s 30(1) of the Interpretation Act, because of the combined effect of the development consent and s 23(1) of the repealed NVC Act. The applicant acknowledges that the development consent of itself did not necessarily create such a right: Eaton and Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293-294. The applicant says that s 23 gave the development consent a special character. Section 23 focused in a personal way on whether the land had been cleared or was about to be cleared, thereby identifying a person who otherwise would have committed an offence. An analogy is drawn with Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178 (CA).

23 The applicant submits that the effect of the grant of the development consent under the EPA Act was that it was permitted to clear the land of native vegetation without requiring an additional development consent to carry out the clearing from the Minister under the NVC Act: Hanwood Pastoral Co Pty Ltd v Director-General, Department of Natural Resources (2005) 144 LGERA 139.

RESPONDENT’S SUBMISSIONS

24 The respondent submits that the grant of development consent under the EPA Act created a right to clear native vegetation (according to Hanwood, above) but did not create rights under the NVC Act. Section 30 of the Interpretation Act1987 (NSW) and its equivalents codify the principle of statutory construction sometimes described as a presumption against retrospectivity. However, on their fair meaning, most Acts of Parliament do interfere with existing rights: West v Gwynne [1911] 2 Ch 1 at 11, which has been consistently applied. It is not giving an Act a retrospective operation to treat it as governing the “future operation” of a matter: Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 31. The NV Act has a “future operation” in respect of clearing such that from 1 December 2005 in order to lawfully clear land of native vegetation one must have a development consent for clearing granted by the Minister. In order to come within s 30(1)(c) the applicant must, but does not in this case, have a vested right: eg Carr v Finance Corporation of Australia Limited[No 2] (1982) 150 CLR 139 at 149; Mathieson v Burton (1971) 124 CLR 1; Esber v Commonwealth of Australia (1991) 174 CLR 430. Reference was also made to Wilson v First County Trust Ltd (No. 2) [2004] 1 AC 816 at 876-880. The respondent submits that s 23 of the repealed NVC Act merely said that that Act was paramount and did not use language which created a right. As a development consent was not of itself a relevant right (Eaton, above) then s 23 could not create a right.

25 The respondent submits that the legislative intent in Schedule 3 Part 2 cl 3 of the NV Act was that the Minister’s consent for clearing under the old NVC Act was preserved, but that any exemption from requiring the Minister’s permission to clear under the old Act, such as that in s 21(2)(a), was not preserved.

DISCUSSION

26 As the NV Act repealed the NVC Act, for the purposes of s 30(1)(c) of the Interpretation Act it is necessary to ascertain whether the applicant acquired or accrued a “right” of the type that s 30(1)(c) preserves. If so, it is necessary to consider whether the prima facie preservation of that right has been displaced by a contrary intention in the repealing statute. Section 30(1)(c) describes in general terms the nature of the rights which it preserves. The right must be one that is “acquired” or “accrued” under the repealed act: see Attorney-General for the State of Queensland v Australian Industrial Relations Commission (2002) 213 CLR 485 at 502 [39].

27 Section 21(2)(a) of the NVC Act is significant because it provides that a person must not clear native vegetation except in accordance with a “development consent that is in force”. That phrase includes a development consent granted under Part 4 of the EPA Act: Hanwood Pastoral Co Pty Ltd v Director General, Department of Natural Resources (2005) 144 LGERA 139. In that case the applicant had a development consent under Part 4 of the EPA Act for the subdivision of land which inevitably involved the removal of native vegetation. The applicant did not have a development consent to clear native vegetation from the Minister under the NVC Act. Cowdroy J held at 150 [62] that “any valid consent issued under Pt 4 of the EP&A Act satisfies the requirements of s 21”. Accordingly, it was unnecessary to also have a development consent issued by the Minister under the NVC Act. The present case is on all fours with Hanwood. If the NVC Act had not been repealed, the applicant would have been permitted to clear the native vegetation as a consequence of implementation of its development consent. The respondent formally submits that Hanwood was wrongly decided, but expressly says it does not submit that it was clearly wrongly decided such that I should depart from comity and not follow it. I propose to follow it.

28 In Esber v Commonwealth of Australia (1991) 174 CLR 430 a majority of the High Court held that the transitional provisions of a repealing statute preserved the entitlement which had accrued under the previous law to proceed with the review of a decision rejecting an application to redeem weekly compensation payments with a lump sum. It was held at 440:

If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v Minister [The Winbar Claim] (1988) 14 NSWLR 685 at 694 :
The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.
Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely ‘ a power to take advantage of an enactment ’ ( Mathieson v Burton (1971) 124 CLR 1 at 23, per Gibbs J). Nor was it a mere matter of procedure; ( Newell v The King (1936) 55 CLR 707 at 711-712); it was a substantive right... Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, ‘ although that right might fairly be called inchoate or contingent ’: Free Lanka Insurance Co Ltd v Ranasinghe , [1964] AC 541 at 552. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.

29 In my opinion, a development consent does not, of itself, create a right or privilege of the type referred to in s 30(1)(c). The High Court has so held in relation to an indistinguishable provision: Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270. In that case the High Court was concerned with the interpretation of cl 65 of the Warringah Scheme Ordinance which relevantly provided that the revocation by a certain statutory provision of an applicable planning scheme “shall not affect … any right, privilege, obligation or liability acquired, accrued or incurred under that scheme or under the Act in relation to that Scheme”. Stephen J, with whom McTiernan and Walsh JJ agreed, held at 293-294:

… there are two features of consents granted under schemes such as those here in question which appear to me to make it inappropriate to speak of them as conferring either a ‘ right ’ in the narrow or wide sense or a ‘ privilege ’. First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor; I would think that a mere trespasser could justify his use of land in terms of town planning controls by reference to some prior consent successfully applied for by a prior lawful occupier. For this reason it appears to me to be inappropriate to regard such a consent as conferring rights or privileges in the sense in which I understand those words to be used in cl. 65 (1) (b). It is well established that in provisions such as cl. 65 (1) (b) no alleged right can be protected so long as it is one common to the community as a whole. As it was said in Abbott v. Minister for Lands [1895] A.C. 425, at p. 431, there must be an ‘ act done by an individual towards availing himself of that right ’ before it can be said to be ‘ a ` right accrued ' within the meaning of the enactment’ . What are protected are rights which have been acquired by or have accrued to an individual; consents under the present schemes do not confer rights of this character.

Secondly, I doubt whether it is proper to regard as a ‘ right ’ or ‘ privilege ’ acquired or accrued under the County Scheme what is no more than the relaxation of a prohibition imposed by that very Scheme. The Scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant's land enabled the renewed exercise of that liberty in a very qualified way if a consent from the responsible authority was first sought and obtained. To describe that situation as one in which a right or privilege had accrued to or been acquired by the appellant under the Scheme appears to me to be a misuse of language; the effect of the Scheme when a permit is issued under it is merely that users of relevant land are in part remitted to their former liberties at general law.

30 However, the applicant submits that the combination of the development consent together with s 23 of the NVC Act created an accrued or acquired right or privilege falling within s 30(1)(c) of the Interpretation Act. At the time of the repeal of the NVC Act, the applicant had the benefit of a development consent, which permitted the applicant to clear the native vegetation, and the benefit of s 23, which stated that clearing could not be prohibited by the provisions of any Act where the vegetation was to be cleared in accordance with a development consent as described in s 21(2). The applicant has taken steps consistent with implementing the consent and but for the intervention of the respondent would have begun clearing the native vegetation. Immediately before repeal of the NVC Act on 1 December 2005, the applicant was about to clear the native vegetation such that s 23(1) of the NVC Act applied. There was no submission by the respondent to the contrary.

31 An analogy may be drawn with Dubler Group Pty Ltd v Minister for Infrastructure, Planning & Natural Resources (2004) 137 LGERA 178 (CA). There, the Court of Appeal held that the proponent of a development application had a right, within the meaning s 30(1)(c) of the Interpretation Act, to have a development application determined in accordance with the law at the time of the lodgement of the development application because of the existence of cl 33 of State Environmental Planning Policy No 53 – Metropolitan Residential Development (SEPP 53). Clause 33 provided as follows: “A provision of this Policy does not apply to or in respect of the determination of a development application made, but not determined, before the commencement of the provision”. Clause 33 in Dubler, I think, is analogous to s 23 of the NVC Act. SEPP 53 was in force when in May 2003 the appellant lodged with a council an application for a development consent. The council did not make a timely determination of the application and in August 2003 the appellant appealed to the Land and Environment Court against the deemed refusal of the application. The proceedings were part heard when, in December 2003, SEPP 53 was amended to exclude from the operation of its Part 3 bush fire prone land and land where there was an evacuation risk in the event of bushfire. The relevant land in this case was so affected. The amendments also introduced cl 44 which provided that, despite cl 33, the amendments extended to development applications made, but not finally determined before the commencement of the amendments. The applicants invoked s 34(4)(b) of the EPA Act which relevantly provided: “(4) the amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect: … (b) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument…”. The Court of Appeal held that the appellant had an acquired or accrued right or privilege which, by force of s 34(4)(b), the amendments did not affect. Giles JA, with whom Sheller and Santow JJA agreed, held at 185-86 [25] - [30]:

…Clause 33 was concerned with the effect of new provisions of SEPP 53. New provisions included a provision negating the application of cl 33 to applications for development consent made but not finally determined. If cl 33 conferred a right within s 34(4)(b) of the Act on a person who had made a development application, such a provision which affected the right would be ineffective. Whether cl 33 conferred such a right called for a consideration of the kind described by Hope JA in NSW Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act & Western Lands Act (The Winbar Claim (No 3)) (1988) 14 NSWLR 685 at 691, 66 LGRA 265, a consideration " of the nature of the right which the Act confers, and of the effect of a repeal or amendment of a statute upon such a right ".

Why was cl 33 included in SEPP 53? It must have been intended to alter the Sofi v Wollondilly Shire Council position; that is, to alleviate the exposure to amendment of SEPP 53. A person who had made a development application was still exposed to other changes in the law, but not to a subsequently commencing provision of SEPP 53.

There is a common law presumption in the construction of legislation that the construction should not impair vested rights, not only retroactively but also prospectively: see Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ and the discussion by Lord Rodger of Earlsferry in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 at 876-881. Interpretation Acts commonly provide that, subject to a contrary intention, amending legislation will not affect vested rights under the amended legislation. Section 34(4)(b) of the Act goes beyond a presumption of construction and is not subject to a contrary intention. Underlying the common law and statutory presumptions and s 34(4)(b) is perceived unfairness if a person's position is altered by the legislation. Fox J said in JR Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161 –
It is not possible to define an `accrued right', anymore [sic] than it is a `right', but the notion which underlies the latter, when dealing with the present type of problem, is that there is something in the nature of a cause of action which has arisen, or is claimed to have arisen, before the repeal or amendment, in circumstances which would render it manifestly unjust for the repealing or amending Act to affect the situation adversely.


Unfairness or manifest injustice is not itself the criterion for acquisition of a right. But if it be asked why the exposure to amendment of SEPP 53 was alleviated, the immediate answer is that it would be unfair to an applicant for development consent, who had devoted time and money to making a development application, to have the rules changed. Clause 33 took the applicant for development consent out of the normal situation spoken of in Robertson v City of Nunawading .

As has often been recognised (see for example Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at 552; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act at 696; Byron Shire Council v Greenfields Mountain Pty Ltd (1999) 105 LGERA 445 at 449, the distinction between what is and is not a right is often a fine one. Clause 33 did more than entitle a member of the community to take advantage of an enactment. It put a person who had made a development application in a special position in the determination of the development application. In my opinion, it can properly be said that such a person acquired a right.

The guidance of Esber v Commonwealth (1992) 174 CLR 430 supports this conclusion.

32 In Dubler the two key provisions were cl 33 of SEPP 53 and s 34(4)(b) of the EPA Act. They are respectively similar to the two key provisions in the present case: s 23 of the NVC Act and s 30(1)(c) of the Interpretation Act. There is, however, one significant difference. Section 34(4)(b) of the EPA Act – unlike s 30(1)(c) of the Interpretation Act - goes beyond a presumption of construction and is not subject to a contrary intention. Leaving aside this point of difference for the moment, I would apply Dubler’s reasoning in the present case as follows.

33 Section 23 of the NVC Act was concerned with the effect of new legislative provisions. A new legislative provision in s 52 of the NV Act repealed the NVC Act and thereby negated the application of s 23. If s 23 conferred a “right” within the meaning of s 30 on a person, such as the applicant, who had a development consent, a subsequent legislative provision which affected that right would be ineffective. That calls for a consideration of the nature of the right which s 23 conferred and of the effect of its repeal upon such a right. Section 23 must have been intended to alleviate the exposure to amendment of the NVC Act. Under the NVC Act, clearing of native vegetation was permitted pursuant to a development consent under the EPA Act: Hanwood (above). Underlying the statutory presumption in s 30(1)(c) is perceived unfairness if a person’s position is altered by legislation. It is unfair to an applicant for a development consent, who has devoted time and money to making a development application, to have the rules changed. Section 23 took the holder of development consent out of the normal position.

34 As Giles JA said in Dubler, the distinction between what is and is not a right is often a fine one. I think that under s 23 a person who has cleared, or who is about to clear land in accordance with a development consent is a special position. In my opinion, it can properly be said that such a person had accrued or acquired a right. The presumption in s 30(1)(c) of the Interpretation Act is that the repeal of the NVC Act did not affect that right.

35 The question remains whether the NV Act evinces a contrary intention. The operation of the presumption that accrued or acquired rights are unaffected by a repealing statute is, by virtue of s 30(1)(c) of the Interpretation Act, expressly subject to the appearance of a “contrary intention”. Therefore, if the provisions of the NV Act are clearly inconsistent with the survival of the accrued or acquired right, those provisions are controlling, and any presumption erected by s 30(1)(c) is displaced: see Attorney-General for the State of Queensland v Australian Industrial Relations Commission (2002) 213 CLR 485 at 505 [52]. The principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. The greater the unfairness, the less likely it is that Parliament intended the new Act to apply and, conversely, the more it is to be expected that Parliament will make it clear if it is, indeed, intended that that new legislation is to apply: Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557 at 571-572 [55] – [59] per Spigelman CJ. The Chief Justice cited a number of authorities including Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. In that case Lord Rodger of Earlsferry at 879-880 [193] – [196] quoted the statement of the presumption found in the judgment of Dickson J in Gustavson Drilling (1964) Ltd v Minister of National Revenue [1977] 1 SCR 271 at 282:

The rule is that a statute should not be given a construction that would impair existing rights as regards person or property unless the language in which it is couched requires such a construction: Spooner Oils Ltd. v. Turner Valley Gas Conservation Board ([1933] SCR 629 at 638). The presumption that vested rights are not affected unless the intention of the legislature is clear applies whether the legislation is retrospective or prospective in operation. A prospective enactment may be bad if it affects vested rights and does not do so in unambiguous terms. This presumption, however, only applies where the legislation is in some way ambiguous and reasonably susceptible of two constructions.

36 In the present case, the focus, when considering contrary intention, is on Schedule 3 Part 2 clause 3 of the NV Act which provides that:

A development consent for clearing granted in accordance with the former Act (before its repeal) by the Minister administering that Act is taken to be a development consent granted in accordance with this Act.

37 There is no equivalent provision in relation to a development consent under the EPA Act, such as was granted to the applicant. Is this clearly inconsistent with the survival of the accrued or acquired right that I have identified? In my opinion, it is not. The development consent under the EPA Act was a creature of that Act and, as such, was unaffected by the repeal of the NV Act. Preservation of a development consent granted by the Minister under the NVC Act is a different matter and it is understandable that it has been preserved in the new Act in the way that it has been. It would be unfair to an applicant who has devoted time and money to obtaining a development consent which permitted native vegetation to be cleared, and which s 23 of the NV Act gave a special character, to have the rules changed. I do not think that the NV Act indicates clearly that it affects the applicant’s accrued or acquired right.

RELIEF

38 No question of discretion is raised by the respondent. I do not think that any discretionary considerations weigh against granting declaratory relief. As I have found in favour of the applicant on the question of construction, a declaration should be made. No injunction has been sought as the respondent is a State Government head of department and is expected to act in accordance with the Court’s finding without further order.

39 The respondent submitted that the form of any declaratory relief should include words such as “, if valid,” after the reference to the development consent to allow for the hypothetical possibility that in future there might be some successful challenge to its validity. I do not think that is appropriate, at least in circumstances where no ground of challenge to validity has been identified. The declaration which I propose to make would effectively be undone, I think, if there were a later successful challenge to the development consent.

40 I grant the following relief:

(a) Declaration that the clearing of native vegetation on Lots 189, 190 and 191 in Deposited Plan 753741, part of Lot 1 in Deposited Plan 110327 and part of proposed closed road Rosler Parade, Henty in accordance with Development Consent No 057-05/06 dated 30 November 2005 issued by Greater Hume Shire Council is not in contravention of the Native Vegetation Act 2003.
(b) Order that the respondent pay the applicant’s costs.
(c) The exhibits may be returned.