Benedict Industries Pty Ltd v Sutherland Shire Council

1. [1]

   MACFARLAN JA: In proceedings in the Land and Environment Court fixed for hearing on 19 November 2015 the appellant (“Benedict”) is charged by the respondent (the “Council”) under the Environmental Planning and Assessment Act 1979 (NSW) (the “EPA Act”) with five summary offences in relation to the construction of a large earthen bund around part of the perimeter of an operating quarry occupied by Benedict and situated at West Menai in the Sutherland Shire.

2. [2]

   By four of those five charges, the Council alleges that, in constructing the earthen bund, Benedict damaged trees and bushland vegetation in contravention of the “Sutherland Shire Tree and Bushland Preservation Order 2001” (the “TPO”). The Council alleges that it made the TPO by a resolution of 21 May 2001. This appeal is not concerned with the fifth charge.

3. [3]

   On 15 and 16 June 2015 Pepper J of the Land and Environment Court heard an application by Benedict for dismissal of the four relevant charges on the ground that the TPO was invalid. Benedict contended, first, that, on its proper construction, the Council’s resolution of 21 May 2001 did not purport to make the TPO; secondly that, if it did, the TPO was invalid because the Council had no power to make it; and thirdly, that the repeal on 29 November 2006 of the “Sutherland Shire Local Environmental Plan 2000” (the “SSLEP 2000”) impliedly repealed the TPO.

4. [4]

   The primary judge rejected the application by judgment of 19 June 2015 ([2015] NSWLEC 101). Benedict now seeks leave to appeal and, if leave is granted, appeals against that judgment pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). It accepts that it requires leave to appeal (see s 5F(3)(a)). Leave to appeal should be granted because the Council does not oppose it and the proposed appeal is arguable and, if successful, would lead to the dismissal of the four relevant charges.

THE STATUTORY AND REGULATORY FRAMEWORK

1. [5]

   Section 24(2) of the EPA Act provides that the Minister as defined (or a delegate) may make a local environmental plan. One of the matters for which a local environmental plan may make provision is the protection or preservation of trees or vegetation (s 26(1)(e)).

2. [6]

   The Minister for Urban Affairs and Planning made the SSLEP 2000 on 13 December 2000. It applied to most of the Sutherland Shire but not to two significant parts, being the Menai town centre and the Kurnell peninsula.

3. [7]

   Clause 13 of the SSLEP 2000 relevantly provided as follows in relation to the Council’s power to make a TPO:

4. [8]

   Section 371 of the Local Government Act 1993 (NSW) states the following in relation to the manner in which Council decisions may be made:

5. [9]

   There was no suggestion in the present case that there was any relevant delegation of the Council’s power to make a TPO under the SSLEP 2000.

THE FACTUAL CIRCUMSTANCES

1. [10]

   On 5 February 2001 the Council considered a report of its Environment and Health Committee dated 29 January 2001.

2. [11]

   The report noted that there were at that time four major planning instruments that applied to the Sutherland Shire. The three of present relevance were:

3. [12]

   Whilst the SSLEP 2000 permitted the Council to make a tree and bushland vegetation preservation order, preservation orders could only be made in respect of trees under the Kurnell SREP and the Menai LEP did not permit the making of a tree or bushland vegetation preservation order at all.

4. [13]

   The report recommended that the Kurnell SREP and the Menai LEP be amended to permit the Council to make a TPO relating to both trees and bushland in the areas covered by those instruments. It also recommended that the existing TPO be extended to cover bushland vegetation. It noted that the Council had been advised, sometime earlier, that the existing TPO “is invalid in that it cannot be applied consistently across the Shire”. Proposed amended instruments were attached.

5. [14]

   At its meeting on 5 February 2001 the Council resolved that the proposed amendments to the Menai LEP and the Kurnell SREP and an amended draft of a new TPO for the Sutherland Shire “be publicly exhibited concurrently for a period of 28 days”.

6. [15]

   A further report of the Environment and Health Committee dated 14 May 2001, which was submitted for consideration by the Council at its meeting on 21 May 2001, concluded as follows:

7. [16]

   At this meeting, the Council passed the following resolutions which conformed with the resolutions recommended in the Environmental and Health Committee report of 14 May 2001:

8. [17]

   The TPO was expressed, by its terms, to apply “to all land within the Sutherland Shire Local Government area” (Clause 1).

The judgment at first instance

1. [18]

   The primary judge quoted the following observations of Wells J in Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504 at 520 in relation to the proper approach to the construction of council resolutions:

2. [19]

   Applying these observations, her Honour concluded that in construing the Council’s resolution of 21 May 2001 she was allowed to have regard to the circumstances surrounding its making. Her Honour continued:

3. [20]

   Her Honour’s reasons for this conclusion were as follows.

4. [21]

   First, her Honour considered that the steps that the Council took before and after 21 May 2001 supported the view that it made the TPO on that date: in particular, the Council’s consideration of drafts of the TPO on three occasions prior to 21 May 2001 and its agreement on that date that the draft TPO would take effect from the date of its gazettal and its publication in the local newspaper. Her Honour considered that the subsequent gazettal and publicity and marketing campaign that occurred after 21 May 2001 was “rationally explicable only” on the basis that the Council had made the TPO on that date.

5. [22]

   Secondly, her Honour considered it to be implicit in resolution 4 passed on 21 May 2001 (see [16] above) that the TPO had been made that day.

6. [23]

   Thirdly, her Honour considered it significant that the Environment and Health Committee’s report of 14 May 2001 recommended that the Council resolve to proceed with the draft planning instruments and TPO and that the Council passed resolutions in identical terms to the recommended resolutions.

7. [24]

   Her Honour noted Benedict’s argument that because the TPO could not, as its terms stated, apply to all land within the Sutherland Shire (because the Menai LEP and Kurnell SREP had not yet been amended as intended), “it could not have been the objective intention of the council to make the TPO” at the meeting of 21 May 2001 (Judgment [66]). Her Honour rejected the argument, stating:

The submissions on appeal

1. [25]

   Relying upon the reference in the Environment and Health Committee Report of 29 January 2001 to the advice that the then existing TPO was invalid because it did not extend to the entire Sutherland Shire (see [13] above), Benedict submitted that the Council knew on 21 May 2001 that it could not make a TPO in the terms of the draft before it on that day because the “threshold steps” of having the Kurnell SREP and Menai LEP amended had not been taken. This explains, so Benedict submitted, “why the Council did not resolve to make the TPO on 21 May 2001, but only resolved that the TPO would take effect when published in the Gazette and the nominated local paper. It would have been impossible as at 21 May 2001, to make a Shire-wide TPO”.

2. [26]

   Benedict submitted that the primary judge erred in taking the view (expressed in relation to Benedict’s argument that, even if the Council intended to make it, the TPO was invalid, see Judgment [73]) that whilst the TPO would not initially apply to the areas covered by the unamended Menai LEP and Kurnell SREP, its application would automatically expand when those instruments were amended to empower the Council to make the TPO in relation to the areas covered by them. In response, the Council accepted that the TPO could not spring into valid operation in this way and that the TPO, insofar as it related to the Kurnell Peninsula and Menai areas, could only be made after the applicable planning instruments were appropriately amended.

3. [27]

   Nevertheless, the Council contended that the terms of its 21 May 2001 resolutions manifested an intention to make the TPO on that occasion and that they were inconsistent with an intention merely to inform the community about an intention of the Council to make the TPO in the future.

4. [28]

   It submitted that the inference that the Council did not understand that the TPO could not automatically apply to the Kurnell Peninsula and Menai areas once the instruments relating to those areas were amended was open, stating:

Consideration

1. [29]

   The appellant’s argument on appeal was twofold. First, it contended that the Council could not have intended to make the TPO on 21 May 2001 because it knew that, if it purported to do so, the TPO could not operate in accordance with its terms and apply to the whole of the Sutherland Shire given the Kurnell Peninsula and Menai planning instruments had not been amended.

2. [30]

   This argument proceeded upon the assumption that the Council not only knew that it could not make an operative TPO in relation to the Kurnell Peninsula and Menai areas unless the relevant planning instruments were amended but also that, before those amendments were effected, it could not, as the primary judge held was possible, make a TPO that was immediately effective in relation to most of the Sutherland Shire and to the remaining areas of the Kurnell Peninsula and Menai when the amendments to the planning instruments for those areas were made. There is no basis in the evidence for concluding that the Council had knowledge of the latter type. An assumption or belief that the TPO could, so far as those limited areas were concerned, spring into effect when the planning instruments were amended, even if erroneous, was not completely irrational. The primary judge’s adoption of this erroneous view demonstrates that this is so. The view is therefore one that the Council may have held.

3. [31]

   As the Council submitted, a legal error to this effect on the part of the Council, is “perhaps understandable”. It is, at the least, as plausible an explanation for the terms of the 21 May 2001 resolutions as a view that the Council did not intend to make the TPO on that day by those resolutions.

4. [32]

   As a consequence, this contextual aspect of Benedict’s argument should be rejected because it does not render a conclusion that the Council intended to make the TPO on that day either more or less likely. Regard must therefore be had to the terms of the resolutions passed on that day, as contemplated by the second aspect of Benedict’s argument.

5. [33]

   Clause 13(6) of the SSLEP 2000 provided that a tree and bushland vegetation preservation order only had effect when it was published in the Gazette and in a local newspaper. Resolution 4 of 21 May 2001 reflected this provision’s terms by providing that the draft TPO was to “take effect from the date of its advertisement in the Government Gazette and St George and Sutherland Shire Leader” (see [16] above).

6. [34]

   Against the background, undoubtedly known to the Council, that under the SSLEP 2000 it, and only it, could make a TPO, the words it used in resolution 4 manifested a clear intent to “make” the TPO in accordance with clause 13(2) of SSLEP 2000. As the Council knew, its decision to make the TPO was a necessary pre-condition to a new TPO taking effect by publication in the Gazette and local newspaper. The Council’s expressed intent that the TPO take effect at that time necessarily embodied its intention to “make” the TPO.

7. [35]

   I do not accept, as Benedict submitted, that the use of the words “as amended” in resolution 4 indicated that the Council intended to make an amended TPO at some future date and not by resolution 4. Neither of the two possible points of reference of those words assist Benedict. If the words are a reference to changes in the draft TPO in the period leading up to the 21 May 2001 meeting, they do not negate an intention on the part of the Council to make the draft TPO as so amended on 21 May 2001. If they refer to replacing an earlier TPO, they are imprecise because, strictly, what occurred was the replacement of the earlier TPO, not its amendment. Regardless, they do not detract from the obvious intent to make the TPO.

8. [36]

   For these reasons, I consider that, contrary to Benedict’s submissions, the Council did purport to make the TPO on 21 May 2001.

The judgment at first instance

1. [37]

   Benedict submitted to the primary judge that even if the Council had purported to make the TPO on 21 May 2001, it was invalid because its geographical ambit (exclusive of the Kurnell Peninsula and Menai areas because of the absence of applicable amendments at that stage to the planning instruments) would be inconsistent with the statement in Clause 1 of the TPO that it applied to all land in the Shire, and to sever part or read down that Clause would involve an impermissible exercise in re-writing the TPO.

2. [38]

   Her Honour rejected this submission for two reasons.

3. [39]

   First, as noted above, (see [26] above), her Honour considered that notwithstanding that the Kurnell Peninsula and Menai planning instruments had not been amended, the Council had the power to make a TPO which became operative in those areas when the amendments were made. As noted above, the parties to the appeal agreed that this view was erroneous.

4. [40]

   Secondly, her Honour held that the full operation of Clause 1 of the TPO was not a pre-condition to its validity. Rather, she said that Clause 1 described the TPO’s intended geographical ambit and could be read down so that the TPO operated only to the extent that it fell within the Council’s power. Her Honour referred to the common law principle to which the plurality referred in Harrington v Lowe [1996] HCA 8;190 CLR 311 at 328 (see [24] above).

5. [41]

   Her Honour also referred to s 32 of the Interpretation Act 1987 (NSW) which is in the following terms:

6. [42]

   Because the Interpretation Act provisions do not apply to an instrument “in so far as the contrary intention appears in [that] Act or in the Act or instrument concerned” (s 5(2)), her Honour cited the following observation of Dixon J in Bank of New South Wales v The Commonwealth [1948] HCA 7; 76 CLR 1 at 371 as to the circumstances in which the application of a provision such as s 32 of the Interpretation Act may be displaced:

7. [43]

   Her Honour concluded that reading down Clause 1 of the TPO so that the TPO only applied to the areas covered by the SSLEP 2000 “would not leave the TPO in a radically different form to that made” and would leave it with “significant work to do, albeit less than that envisaged by the council” (Judgment [82]).

Consideration

1. [44]

   The primary judge’s first reason cannot be sustained, for the reason given above in [25]–[26].

2. [45]

   Benedict submitted that her Honour’s second reason failed “to properly recognise the fundamental role of clause 1 in defining and constituting the TPO as an instrument applying to the whole Shire”. It contended that to read down Clause 1 of the TPO in the manner that her Honour suggested should occur “would be to judicially create an instrument that perpetuated the mischief that Council was seeking to avoid”, that is, the lack of application of the earlier TPO to the Kurnell Peninsula and Menai (see [40] above).

3. [46]

   I reject this argument. It is no answer to a claim for severance, whether by reading down or otherwise, that the provision in question would not operate as fully as the maker of it had intended. The nature of severance is that a provision to which the doctrine has been applied will not operate in such a way. Rather, as indicated by the following observations of Dixon J in Andrews v Howell [1941] HCA 20; 65 CLR 255 at 281, the question is whether an intention that the provision operate as fully as intended or not at all can be identified:

4. [47]

   In the present case, there is no reason to conclude that the Council intended that unless the TPO had its “full intended operation”, it should not operate at all.

WHETHER THE TPO WAS ULTRA VIRES AS PURPORTING TO PROHIBIT MORE CONDUCT THAN THE COUNCIL WAS AUTHORISED TO PROHIBIT?

1. [48]

   To support this ground of appeal, Benedict contrasted the Council’s power to make a TPO under the SSLEP 2000 with the terms of the TPO purportedly made by it.

2. [49]

   Clause 13(3) of the SSLEP 2000 permitted the Council to prohibit certain relevant conduct “except with development consent or the permission of the Council” (see [7] above). On the other hand, Clause 2 of the TPO prohibited relevant conduct “unless written consent [was] obtained in accordance with this Order”. Clause 5(b) of the TPO expanded that proviso as follows:

3. [50]

   Benedict submitted that the SSLEP 2000 did not authorise the Council to limit the development consent exception to one where the consent authorised otherwise prohibited conduct “by express words” or to limit the “permission of the Council” exception in Clause 13(3) to “written consent”.

4. [51]

   The primary judge rejected Benedict’s submissions, holding, first, that the approval implicit in a development consent to do acts apparently prohibited by the TPO would subsist notwithstanding the TPO and, secondly, that the Council was, as part of its power to make the TPO, entitled to confine the exception in Clause 13(3) to written consent to the doing of acts otherwise contrary to the TPO.

5. [52]

   It is unnecessary to determine the correctness of these reasons. It is sufficient to conclude, in accordance with the Council’s contention on appeal, that, to the extent, if at all, that there is some limited conflict between the enabling power and the TPO as Benedict contends, the TPO may be read down to achieve validity in accordance with the principles referred to in [40] to [46] above. To do so would not produce a radically different TPO and, again, there is no basis for concluding that the Council would not have intended the relevant provisions to operate at all if they could not be read down to this limited extent.

DID THE REPEAL OF SSLEP 2000 BY SSLEP 2006 IMPLIEDLY REPEAL THE TPO?

1. [53]

   The Sutherland Shire Local Environmental Plan 2006 (the “SSLEP 2006”) repealed the SSLEP 2000 except insofar as the latter applied to certain parcels of “excluded” land, including that at Menai upon which the alleged offences were committed.

2. [54]

   Benedict argued at first instance that because of the express intention in Clause 1 of the TPO that it apply to the whole of the Shire, the purported preservation by the SSLEP 2006 of the SSLEP 2000’s operation in relation to the subject land did not in fact preserve the operation of the TPO in relation to the subject land because if it could not apply to the whole of the Sutherland Shire, it could not apply at all.

3. [55]

   The primary judge rejected this argument, concluding, in conformity with her reasons referred to in [39] to [43] above, that Clause 1 should be read down to apply only to land to which it can validly apply (Judgment [108]).

4. [56]

   On appeal, Benedict contended that the TPO “cannot be eviscerated to apply only to small parcels of land without its character being radically altered” and that “the TPO is an order which could sensibly only apply broadly across the Shire”. It referred to Dixon J’s statement of principle in Andrews v Howell quoted in [46] above as support. That statement is however against Benedict’s argument as, to use Dixon J’s words, Benedict has not demonstrated that it was Council’s intention to be found in the TPO “that unless it receives its full intended operation it shall not operate at all”. It is correct, as Benedict submitted, that the Council’s stated purpose was to make a new preservation order that would apply to the whole of the Shire but that does not mean that if it could not do that that it did not want its TPO to operate to the widest extent possible.

5. [57]

   Benedict also submitted that after the repeal of the SSLEP 2000, Clause 1 of the TPO would mislead members of the public because there would be “absolutely no indication on the face of the TPO that it only applied to [the] much reduced pockets of land”.

6. [58]

   This consideration does not have, any force. First, if correct, it would apply whenever any legislation or statutory instrument was read down in order to preserve validity. Section 32 of the Interpretation Act requires that reading down to occur. Secondly, as the Council submitted, to reduce the geographical scope of operation of an instrument like the TPO has no impact on the operation of the TPO on land to which it remains applicable. Thus, if read down, the TPO’s operation would not be radically different in relation to the reduced land than its intended operation in relation to that land.

7. [59]

   For these reasons, I also reject this ground of appeal.

ORDERS

1. [60]

   As none of the grounds of appeal have been successful, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [61]

   ADAMS J: I agree with Macfarlan JA.

3. [62]

   FAGAN J: I agree with Macfarlan JA.