Calarco and Anor v Liverpool City Council

1. [1]

   JOHNSON J: By Amended Summons filed 20 January 2017, the Plaintiffs, Giuseppe Calarco and Antonetta Calarco, seek declaratory relief and relief in the nature of mandamus with respect to a decision of the Defendant, Liverpool City Council, under the Land Acquisition (Just Terms Compensation) Act 1991 (“Land Acquisition Act”).

2. [2]

   The question for determination in these proceedings is whether the Defendant, having accepted a hardship application made on behalf of the Plaintiffs, can be required to acquire the whole of the Plaintiffs’ land contained in Lot 2 in Deposited Plan xxx at xxx Gurner Avenue, Austral (“the Austral property”) or whether the acquisition by the Defendant of the Austral property can be confined to that part of the Austral property which is zoned “RE1 Public Recreation” and not that part zoned “SP2 Infrastructure”.

The Hearing of the Amended Summons

1. [3]

   At the hearing on 20 June 2017, the Plaintiffs were represented by Mr Tomasetti SC and Mr James Johnson of counsel. The Defendant was represented by Mr Lancaster SC and Dr James Smith of counsel.

2. [4]

   The evidence adduced at the hearing was documentary. There was no oral evidence.

Factual Background

1. [5]

   The relevant facts were not in dispute. What follows is drawn from the Defendant’s Statement of Reasons dated 17 February 2017 (Exhibit A, Tab 5).

2. [6]

   The Plaintiffs are the registered proprietors of the Austral property. The Austral property is comprised of two portions of land, one zoned “RE1 Public Recreation” and the other zoned “SP2 Infrastructure” in the form of “Local Drainage”.

3. [7]

   In February 2016, the Plaintiffs made a hardship application for the Defendant to acquire the Austral property under the provisions of s.23 Land Acquisition Act. In support of that application, the solicitors for the Plaintiffs furnished a range of documentary material which was supplemented with further material in October 2016.

4. [8]

   The Plaintiffs’ application came before the Full Council of the Defendant on 23 November 2016. It was accepted that the Plaintiffs’ application established that:

5. [9]

   Based on the application of the Plaintiffs, the Defendant was satisfied that:

6. [10]

   Accordingly, the Defendant accepted that the Plaintiffs had suffered hardship under s.24 Land Acquisition Act.

7. [11]

   The Defendant noted that part of Lot 2 is zoned “RE1 Public Recreation” and part is zoned “SP2 Infrastructure” and marked “Local Drainage” under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (“the 2006 SEPP”), to which further reference will be made.

8. [12]

   The Defendant’s Statement of Reasons refers to statutory provisions in the Land Acquisition Act together with s.26 Environmental Planning and Assessment Act 1979 (“EPA Act”). Following reference to s.26(1)(c) EPA Act, the Defendant’s Statement of Reasons expressed the following conclusion (Exhibit A, page 48):

9. [13]

   The Statement of Reasons contains the foundation for the Defendant’s decision on 23 November 2016 with that decision being confirmed by the Defendant on 14 December 2016.

Relief Sought by the Plaintiffs

1. [14]

   By their Amended Summons, the Plaintiffs seek the following orders:

   1. (1)

      a declaration that the Defendant is bound to acquire the whole of the Austral property under s.24 Land Acquisition Act;

   2. (2)

      a declaration that, in the circumstances and events which have happened, the Defendant has failed to comply with its statutory duty referred to in (1) above;

   3. (3)

      an order in the nature of mandamus compelling the Defendant to acquire the whole of the Austral property;

   4. (4)

      costs;

Relevant Statutory Provisions and Environmental Planning Instruments

1. [15]

   The Court was taken to a large numbers of statutory provisions and Environmental Planning Instruments (“EPIs”) during the course of submissions. I will set out below the principal provisions and instruments which call for consideration.

2. [16]

   Sections 26 and 27 EPA Act are of critical importance in the resolution of these proceedings. Section 26(1) provides:

3. [17]

   Section 27 EPA Act states:

4. [18]

   Section 7 EPA Act provides for the responsibility of the Minister:

5. [19]

   Section 24 EPA Act provides for the making of EPIs:

6. [20]

   The Plaintiffs placed reliance on s.33A EPA Act which provides for the issue of standard instruments:

7. [21]

   The Plaintiffs relied upon ss.37 and 53 EPA Act which provide for the Governor to make State Environmental Planning Policies (“SEPPs”) and the Minister to make Local Environmental Plans (“LEPs”). Sections 37 and 53 provide as follows:

8. [22]

   Division 3 of the Land Acquisition Act is entitled “Owner-initiated acquisition in cases of hardship”. Section 21(1) - (3) Land Acquisition Act states:

9. [23]

   Sections 23-24 Land Acquisition Act relate to hardship and state:

10. [24]

    Sections 25 and 26 Land Acquisition Act provide for the method of acquisition and compensation for acquisition under Division 3. Sections 25 and 26 provide:

11. [25]

    Reference was made at [11] above to the 2006 SEPP.

12. [26]

    Clause 2 of that SEPP provides:

13. [27]

    It was common ground that the Austral property lay within the South West Growth Centre: clause 3(1)(b).

14. [28]

    Clause 6 states:

15. [29]

    Clause 7 provides:

16. [30]

    It is appropriate to set out parts of Appendix 8 to the 2006 SEPP. Detailed submissions were made with respect to these provisions. It was common ground that the Austral property fell within the area covered by the Liverpool Growth Centres Precinct Plan 2013. Several provisions in the Liverpool Growth Centres Precinct Plan 2013 are pertinent:

17. [31]

    The Plaintiffs placed particular reliance upon Clause 5.1 of Appendix 8 to the 2006 SEPP. Clause 5.1 provides (emphasis added):

18. [32]

    The parties referred to a number of provisions in the Interpretation Act 1987. Section 3 Interpretation Act 1987 provides:

19. [33]

    Section 5 of that Act provides:

20. [34]

    The word “prescribed” is defined in s.20 Interpretation Act 1987 so that, in any Act, “prescribed” means “prescribed by, or by a statutory rule made under the Act in which that word occurs.”

21. [35]

    Section 21(1) Interpretation Act 1987 provides that, in any Act or instrument:

22. [36]

    The parties addressed with respect to the purposive construction principle in s.33 and the extrinsic material provision in s.34 Interpretation Act 1987.

23. [37]

    Submissions were made, as well, by reference to s.35 Interpretation Act 1987 and the use of headings and notes in the construction of statutory provisions.

Submissions of the Plaintiffs

1. [38]

   The Plaintiffs submitted that the Austral property fell within the Liverpool Growth Centre Precinct Plan so that the provisions in Appendix 8 applied to it.

2. [39]

   The Plaintiffs had made a hardship application to the Defendant under ss.23 and 24 Land Acquisition Act which was accepted by the Defendant. The Plaintiffs noted that the land in Lot 2 of the Austral property was zoned “RE1 Public Recreation” and “SP2 (Local Drainage)” (to be understood as “SP2 Infrastructure”). It was submitted that the “RE1 Public Recreation” part of Lot 2 fell within the concepts of an open space, public space or public reserve for the purpose of s.26(1)(c) EPA Act, this being a proposition accepted by the Defendant.

3. [40]

   The Plaintiffs submitted, in addition, however, that the land zoned “SP2 (Local Drainage)” also fell within s.26(1)(c) EPA Act as it was reserved for “any other purpose that is prescribed as a public purpose for the purposes of this section”.

4. [41]

   The Plaintiffs argued that the whole of Lot 2 in the Austral property was “land designated for acquisition for a public purpose” so that the Defendant was bound to acquire the whole of Lot 2 of the Austral property from the Plaintiffs having accepted their hardship application under ss.23 and 24 Land Acquisition Act.

5. [42]

   It was contended that the “SP2 (Local Drainage)” zoned land was caught by s.26(1)(c) in that it had a purpose which was “prescribed as a public purpose” as a result of the creation of the 2006 SEPP, and the inclusion in that SEPP of Appendix 8 (Clause 5.1) (see [31] above). It was submitted that the proper construction of Clause 5.1 of Appendix 8 manifested a prescription under s.33A(2) EPA Act having regard, as well, to the terms of s.33A(9) EPA Act concerning the form and subject matter of an EPI (see [20] above).

6. [43]

   The Plaintiffs submitted that the definition of “prescribed” in s.20 Interpretation Act 1987 is not applicable in this case as a contrary intention appears in the Act or instrument concerned so as to attract the operation of s.5(2) Interpretation Act 1987. It was submitted that this contrary intention appears in s.33A(2)(b) EPA Act (by use of the word “prescription”) so that s.33A allows the 2006 SEPP to prescribe the matters required to be prescribed for the purposes of the application of the mandatory provisions of the standard instrument.

7. [44]

   The Plaintiffs submitted that the Defendant’s construction which confined the application of the hardship provision to part only of Lot 2 of the Austral property would not serve the objects of the hardship provisions in the Land Acquisition Act. In this regard, reliance was placed upon the decision of McClellan CJ (as his Honour then was) in Smith v Roads and Traffic Authority of NSW [2005] NSWLEC 438 at [86]-[87] where his Honour referred to the purposes to be served by ss.26 and 27 EPA Act which “provided a fair outcome for affected owners but reflected the practical reality of the modernised planning system” with a fundamental objective of the EPA Act being “the orderly and economic use of land”.

8. [45]

   It was submitted that the reservation of land for “local drainage” purposes was a reservation or holding back of land for a public purpose with the orderly development of the land requiring the provision of pre-planned trunk and local drainage schemes which maximised both capital expenditure on urban infrastructure and the proper economic exploitation of land resources.

9. [46]

   The Plaintiffs argued that the reservation of land for the purposes of “local drainage” was a use which benefits other land users in the locality and severely restricts the use to which the owner of the reserved land can put the land, thus interfering significantly with vested proprietary interests. It was submitted that the land owner can only use the land for local drainage or roads (Land Use Table for Zone SP2 Infrastructure, Appendix 8 to 2006 SEPP).

10. [47]

    It was submitted that the Defendant’s approach meant that private land can be reserved by the State for public purposes (and effectively sterilised from private development) and even where the owner is suffering hardship, no obligation arises for the State to acquire the land. It was submitted that such a construction of the legislation (if available) is to be avoided: s.33 Interpretation Act 1987.

11. [48]

    If the Court was in any doubt as to the construction of the 2006 SEPP, the Plaintiffs submitted that a construction should be chosen which interferes least with private property rights. In this regard, the Plaintiffs relied upon the judgment of French CJ in R&R Fazzolari Pty Limited v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12 at 618-620 [40]-[44].

12. [49]

    The Plaintiffs submitted that the fact that the legislative scheme in the Land Acquisition Act provides for compensation to be paid to an owner suffering hardship mitigates the presumption referred to by French CJ in cases where the land is to be acquired because the legislature has turned its mind to and recognised the need for compensation: Pearce and Geddes, “Statutory Interpretation in Australia”, 8th edn, LexisNexis Butterworths, 2014, paragraph [5.22].

13. [50]

    It was contended that it is the 2006 SEPP that prescribes use of land for the purpose of infrastructure for local drainage as a public purpose as referred to in s.26 EPA Act, and that ss.26 and 27 of that Act are to be read with Clause 5.1 of Appendix 8 of the 2006 SEPP.

14. [51]

    The Plaintiffs submit that the 2006 SEPP specifies the Defendant as the authority of the State and as the relevant authority required to acquire land zoned “SP2 Infrastructure” and marked “Local Drainage” as the 2006 SEPP prescribes that purpose as a public purpose.

15. [52]

    It was argued that, on 23 November 2016, the Defendant resolved that it was satisfied that the Plaintiffs would suffer hardship if there was any delay in the acquisition of the Austral property. Having formed that opinion, it was said that the Defendant came under an enforceable obligation to acquire the Austral property in its entirety, being the land zoned “RE1” and “SP2”.

16. [53]

    The Plaintiffs submitted that Clause 5.1 of Appendix 8 of the 2006 SEPP identifies, for the purpose of s.27 EPA Act, the authority of the State that will be the relevant authority to acquire land reserved for certain public purposes. It does so in a table which identifies the type of land and the relevant authority. The Defendant is identified as the authority of the State to acquire the land.

17. [54]

    It was submitted that it is the 2006 SEPP that prescribes the use of the land for local drainage, as a use of land for a public purpose, and identifies the Defendant as the authority of the State required to acquire the land.

18. [55]

    It was contended that it would be contrary to established principles of statutory construction, and an absurd result, if the Plaintiffs’ land was reserved for acquisition by the Defendant, but the Defendant was never under an obligation to acquire it.

19. [56]

    The Plaintiffs submitted that they are entitled to the relief sought in the Amended Summons.

Submissions for the Defendant

1. [57]

   The Defendant submitted that, in order for the “SP2 Infrastructure” zoned land to be “designated for acquisition for a public purpose” under s.21 Land Acquisition Act, it was required:

2. [58]

   It was accepted that the “SP2 Infrastructure” zoned land is included in the South West Growth Centre Land Reservation Acquisition Map in the 2006 SEPP and has the annotation “Local Drainage”. The Defendant did not dispute that:

3. [59]

   The Defendant contended that the “SP2 Infrastructure” zoned land reserved for “Local Drainage” does not fall within a “public purpose” referred to in s.26(1)(c) EPA Act so as to enliven s.21(1)(b) Land Acquisition Act.

4. [60]

   Senior Counsel for the Defendant took the Court to other terms used in s.26(1)(c) EPA Act. The definitions of “public place” and “public reserve” in the Dictionary to the Local Government Act 1993 were noted. It was noted that the term “open space” is not defined in the Dictionary to the Local Government Act 1993 and the term “public place” is not otherwise further defined in the Local Government (General) Regulations 2005. The terms “public cemetery, a public hospital, a public railway, a public school” are not relevant to the present proceedings.

5. [61]

   In light of these terms, the Defendant submitted that “SP2 Infrastructure” zoned land reserved for “Local Drainage”, as a matter of statutory construction, simply does not constitute a purpose “referred to” in s.26(1)(c) EPA Act.

6. [62]

   The Defendant contrasted this with land zoned “RE1 Public Recreation” under the 2006 SEPP, which includes as an objective “to enable land to be used for public open space” and permits with consent “recreation areas” (defined in the 2006 SEPP to include a “public park” which is a “public reserve” under the Local Government Act 1993) (see, for example, Maloney v Minister Administering the Environment Planning and Assessment Act 1979 (2011) 184 LGERA 386; [2011] NSWLEC 121 at 388-389 [6]-[8]).

7. [63]

   The Defendant submitted that, where only the “RE1 Recreation” zoned part of the Austral property was reserved by the 2006 SEPP for a purpose referred to in s.26(1)(c) EPA Act, then ss.21(1)(b) and 23(4) Land Acquisition Act would not require the Defendant to acquire more than that land.

8. [64]

   The Defendant accepted that the Plaintiffs have suffered hardship within the meaning of s.24 Land Acquisition Act for a portion of their land zoned “RE1 Recreation” under the 2006 SEPP and had offered to acquire such portion, but not the remainder of the Plaintiffs’ land zoned “SP2 Infrastructure”.

9. [65]

   The Defendant submitted that, in order for the “SP2 Infrastructure” land to be reserved for the purpose of s.26(1)(c), it would need to fall within the words “any other purpose that is prescribed as a public purpose for the purposes of this section”. It was noted that s.26(1)(c) EPA Act does not specify the means of prescription. Reliance was placed upon the definition of the word “prescribed” in s.20 Interpretation Act 1987.

10. [66]

    It was submitted that the 2006 SEPP does not constitute a “statutory rule” and is not capable of prescribing a new class of “public purpose” for the purpose of s.26(1)(c) EPA Act.

11. [67]

    It was submitted that the 2006 SEPP was silent in relation to specifically prescribing the “SP2 Infrastructure” zone - “Local Drainage” as a public purpose for the purposes of s.26(1)(c) EPA Act (assuming an EPI can prescribe such purposes, which the Defendant submits it cannot).

12. [68]

    It was accepted that the “SP2 Infrastructure” land is included in the South West Growth Centre Land Reservation Acquisition Map and has the annotation “Local Drainage”. It was submitted, however, that the zone and/or map is not sufficient to constitute a prescription for the purposes of s.26(1)(c) EPA Act so as to enliven s.26(1)(b) Land Acquisition Act.

13. [69]

    It was submitted that the principles of statutory interpretation and s.33 Interpretation Act 1987 supported the Defendant’s argument. The 2006 SEPP should be interpreted in accordance with general principles of statutory interpretation: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at 388 [36]. That required the text of the provisions being interpreted (Clause 5.1 of Appendix 8 of the map) to be the focus of consideration: Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at 143 [6]. However, the manifest intention of the statute must not be defeated by too little adherence to its precise language: Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40 at 655-666 [20].

14. [70]

    It was submitted that the meaning of a provision in an EPI is to be determined having regard to its context and purpose, with the context to be understood in its widest sense: Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [7]-[9]; Wilson v State Rail Authority of NSW (2010) 78 NSWLR 704; [2010] NSWCA 198 at 707-708 [12]-[13]. A construction that would promote the purpose or object underlying the instrument is to be preferred to a construction that would not promote that purpose or object: s.33 Interpretation Act 1987.

15. [71]

    The Defendant submitted that the Land Use Table of Part 2 of Appendix 8 of the 2006 SEPP noted that the subject “SP2 Infrastructure” land was reserved for the “purpose shown on the Land Zoning Map”. Read in context, it was submitted that an interpretation which promotes the objects of both the ”SP2 Infrastructure” zone and the operation of the map to provide infrastructure uses (in this case “Local Drainage”) in areas so designated ought be preferred.

16. [72]

    The Defendant noted the Plaintiffs’ argument that the correct approach is one where the map is construed as prescribing the public purposes under s.26(1)(c) EPA Act and as reserving the relevant land for use for those purposes. The Defendant submitted, however, that the term “reservation” as used in s.26(1)(c) EPA Act requires that land be “imprinted with a particular [and exclusive, future public] purpose”, relying upon Carson v Department of Environment and Planning (1985) 3 NSWLR 99 at 103-104, 108.

17. [73]

    Considering the text of s.26(1)(c) in the way referred to in Carson v Department of Environment and Planning, the Defendant submitted that “SP2 Infrastructure” - “Local Drainage” is simply not a species of the genus of public purpose identified in s.26(1)(c) EPA Act.

18. [74]

    With respect to the Plaintiffs’ reliance upon s.33 Interpretation Act 1987, the Defendant pointed to the objects of the Land Acquisition Act as contained in s.3 which included:

19. [75]

    The term “public purpose” is defined in s.4 Land Acquisition Act as:

20. [76]

    The Defendant contrasted this provision with the heading to s.21 Land Acquisition Act - definition of “land designated for acquisition for a public purpose”.

21. [77]

    The Defendant submitted that ss.34 and 35 Interpretation Act 1987 permit the “heading” of the statutory provision to be used to assist in ascertaining the meaning of that provision if there is an ambiguity. The Defendant submitted that there is no ambiguity. Nevertheless, it was submitted that having regard to the heading reinforces its approach to the task of interpretation.

22. [78]

    The Defendant submitted that the proper interpretation of s.21(1)(b) Land Acquisition Act and s.26(1)( c) EPA Act is such that the use of the land zoned “SP2 Infrastructure” reserved for “Local Drainage” is not “a purpose referred to” in s.26(1)(c) such as to enliven the operation of Division 3 of Part 2 of the Land Acquisition Act.

23. [79]

    Accordingly, it was submitted that the Defendant is not required to acquire that part of the land zoned “SP2 Infrastructure” and no error had been shown in the Defendant’s refusal to acquire that part of the Austral property.

Decision

1. [80]

   The determination of these proceedings requires consideration of a range of statutory provisions and clauses in EPIs in what appears, at times, to be a labyrinthine complex.

2. [81]

   To succeed in these proceedings, it is necessary for the Plaintiffs to establish that the Defendant was bound to acquire the whole of Lot 2 of the Austral property under the hardship provisions in ss.23 and 24 Land Acquisition Act.

3. [82]

   The Plaintiffs had a straight-forward problem. Lot 2 was fettered by different forms of limitation so that the Plaintiffs suffered hardship with respect to it. The hardship did not arise solely from the “RE1 Public Recreation” zoning. It arose, as well, from the “SP2 Infrastructure (Local Drainage)” zoning.

4. [83]

   The Defendant was satisfied that the Plaintiffs had made out their hardship case in accordance with the statutory formula in ss.23 and 24 Land Acquisition Act. The Defendant accepted that, in these circumstances, the Plaintiffs found it necessary to sell the whole of Lot 2 of the Austral property without delay in order to avoid a substantial reduction in the Plaintiffs’ income.

5. [84]

   Lot 2 of the Austral property was subject to two different forms of restriction - one being the “RE1 Public Recreation” zoning and the other being the “SP2 Infrastructure (Local Drainage)” zoning. The Plaintiffs were not at liberty to sell Lot 2 in whole or in part. Insofar as the hardship provisions in the Land Acquisition Act were intended to allow a landowner to overcome hardship, the response of the Defendant did not serve this purpose. Lot 2 could not be sold (in whole or in part) to another person. The acquisition of that part of Lot 2 zoned “RE1 Public Recreation” would leave the Plaintiffs with a part of Lot 2 which could not be meaningfully used, let alone sold, by them.

6. [85]

   The observations of French CJ in R&R Fazzolari v Parramatta City Council at 618 [40]-[43] have traction in this case. In construing the provisions under consideration, a construction should be adopted which allows the compulsory acquisition provisions to operate meaningfully and effectively with respect to private property rights. The hardship provisions are intended to operate in a practical and realistic fashion. The Defendant’s construction, which provides no meaningful response to the Plaintiffs’ hardship application, does not promote the purpose or object of the hardship provisions and the “public purpose” provision to which they are directed.

7. [86]

   It is necessary for the Plaintiffs to demonstrate that the zoning of the “SP2 Infrastructure” land marked “Local Drainage” fell within the description “any other purpose that is prescribed as a public purpose for the purposes of this section” in s.26(1)(c) EPA Act. I approach the matter upon the basis that the Court should so find unless there is an intractable construction to the contrary.

8. [87]

   The EPA Act does not contain its own express formula for prescription for the purpose of the Act.

9. [88]

   It is not necessary that prescription for the purpose of s.26(1)(c) EPA Act must be carried out solely by an express provision within the EPA Act itself. To the extent that reliance needs to be placed upon it, there is a measure of flexibility available by operation of s.5(2) Interpretation Act 1987 in this respect.

10. [89]

    The Court is entitled to have regard to the full statutory definition of “prescribed” in s.20 Interpretation Act 1987. The term “statutory rule” is defined relatively broadly in s.21 Interpretation Act 1987. I note that that definition does not refer to an EPI, but that express reference is made to an EPI in s.5(6) Interpretation Act 1987. I do not approach the process of construction upon the basis that prescription by an EPI is necessarily excluded because of these provisions.

11. [90]

    The statutory scheme under the EPA Act provides for the Governor to make certain instruments (SEPPs) and the Minister to make other instruments (LEPs). The 2006 SEPP itself has legislative attributes so that the rules of statutory construction apply to its interpretation. In this case, the 2006 SEPP includes Appendix 8, the Liverpool Growth Centre Precinct Plan which has application to the Austral property.

12. [91]

    The zoning of land as “SP2 Infrastructure” with a marking “Local Drainage” is capable of being accommodated within the ordinary meaning of the words “public purpose”. This approach is fortified by the terms of Clause 5.1 of Appendix 8 to the 2006 SEPP which operate to this effect. This document forms part of a legislative instrument created under the umbrella of the EPA Act. It contains provisions which apply specifically to the region which includes the Plaintiffs’ Austral property.

13. [92]

    In my view, this document cannot be put to one side (as the Defendant seeks to do) in undertaking the necessary process of statutory construction. On the Defendant’s argument, land zoned “SP2 Infrastructure” and marked “Local Drainage” could never fall within the non-exclusive definition of public purpose in s.26(1)(c) EPA Act. If that was so, one wonders why Clause 5.1 of Appendix 8 to the 2006 SEPP includes a classification extending to land which is zoned in this way.

14. [93]

    It was submitted for the Defendant that Clause 5.1 is to be understood only as identification of the relevant authority of the State which is to become involved once the owner-initiated acquisition provisions in s.27 Land Acquisition Act have become engaged. In my view, this is an unduly narrow construction of this instrument. A fair reading of this instrument indicates that reserved land which is zoned “SP2 Infrastructure” and marked “Local Drainage”, which is the subject of a successful hardship application under the Land Acquisition Act, is to be acquired by the relevant council and not some other State instrumentality. This part of Appendix 8 should be construed as being part of a coherent overall scheme which sheds light upon property which is to be the subject of s.26(1)(c) EPA Act and ss.23 and 24 Land Acquisition Act.

15. [94]

    I am satisfied that this construction, which favours the Plaintiffs, is open upon a fair reading of the relevant provisions of the EPA Act, Land Acquisition Act and Appendix 8 to the 2006 SEPP. This conclusion is not undermined by any provision in the Interpretation Act 1987.

16. [95]

    To the extent that there is a competing construction based upon a strict reading of s.26(1)(c) EPA Act, I would, in any event, prefer the construction advanced on behalf of the Plaintiffs. This construction promotes the purpose or object of ss.23 and 24 Land Acquisition Act and does not undermine the terms of s.26(1)(c) EPA Act. It permits the remedial hardship provision to operate in the practical context of a case such as this one, where there is demonstrated hardship. The Defendant’s approach would confine their operation to only one of the two clear public purposes involved.

17. [96]

    The outcome in the present proceedings provides an illustration of the adage of Lord Diplock referred to by McHugh JA (as his Honour then was) in Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 424 that, if the Courts can identify the target of legislation, “their proper function is to see that it is hit; not merely to record that it has been missed”.

18. [97]

    Although it has played no part in my determination in this matter, which involves a process of statutory construction, one cannot help but observe that the Defendant itself accepted (on its own website) that land may be needed for a public purpose such as drainage (at least until a recent amendment) (Exhibit A, page 30).

19. [98]

    The Plaintiffs have satisfied the Defendant on hardship grounds that it had become necessary for them, as landowners, to sell the whole of Lot 2 in the Austral property without delay. For practical purposes, that hardship cannot be alleviated by the decision made by the Defendant.

20. [99]

    I am satisfied that the two zoned components of Lot 2 of the Austral property had both been designated for acquisition for a public purpose. This designation affected the whole of Lot 2 so that the sensible operation of ss.23 and 24 Land Acquisition Act should apply to the whole of the Austral property.

21. [100]

    I am satisfied that this construction accords with a fair reading of the relevant legislation and instruments as well as giving effect to the purpose underlying s.26(1)(c) EPA Act and the Land Acquisition Act.

22. [101]

    The conclusion which I have reached does not involve any distortion of the relevant statutory language. Nor does it undermine the purpose of these provisions which are intended to provide a remedial pathway for landowners whose property is tied up as a result of a designation for use for a public purpose.

Conclusion

1. [102]

   The Plaintiffs have made good their claim for relief in this case. I am satisfied that the Plaintiffs are entitled to declaratory relief and relief in the nature of mandamus as sought in the Amended Summons.

2. [103]

   It is appropriate that costs follow the event so that the Defendant will be ordered to pay the costs of the Plaintiffs.

3. [104]

   Insofar as the Amended Summons sought an order for payment of interest on costs, I will allow the parties an opportunity to address that issue in writing if the Plaintiffs press the claim.

4. [105]

   I make the following declarations and orders: