Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Hearing dates: 1 August 2016 Decision date: 01 August 2016 Before: McColl JA at [25], [28]; Basten JA at [1]; Payne JA at [27]; Decision: (1) Grant the applicant Shire Council leave to appeal from the decision of Craig J in the Land and Environment Court given on 5 February 2016. (2) Allow the appeal and set aside the answer given to the question for determination by the court. (3) In place of the answer given, answer the question as follows: Question: Whether Development Application LUA13/0968 lodged with Wingecarribee Shire Council on 11 November 2013 is saved by virtue of clause 1.8A of the Wingecarribee Local Environmental Plan 2010 or whether it is prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38). Answer: (1) With respect to the first limb of the question, clause 1.8A of the Wingecarribee Local Environmental Plan 2010 has no application to the development application lodged on 11 November 2013 by the respondent; (2) With respect to the second limb of the question, the development contained in the development application lodged on 11 November 2013 by the respondent is prohibited under the zoning provided by the Wingecarribee Local Environmental Plan 2010 (Amendment No 38). (4) Remit the matter to the Land and Environment Court. (5) Order that the respondent pay the costs of the Shire Council in this Court. Catchwords: APPEAL – civil – application for leave – interlocutory decision of judge of Land and Environment Court in Class 1 jurisdiction – whether error in construction of savings provision of environmental planning instrument ENVIRONMENT AND PLANNING – development application – application prohibited as not conforming to land zoning plan following amendment to Wingecarribee Local Environmental Plan – application lodged prior to amendment – amendment specific to land subject of development application – whether savings provision operated to cause application to be determined as if amendment to environmental planning instrument had not commenced STATUTORY INTERPRETATION – environmental planning instrument – savings provision – whether "this Plan" referred to instrument as originally published or included amendments as incorporated – whether clause has ambulatory effect – cl 1.8A Wingecarribee Local Environmental Plan 2010 Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 34, 72I, 76B, 79C; Pt 3, Div 4B Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (NSW), Sch 6 [6] Land and Environment Court Act 1979 (NSW), s 57 Wingecarribee Local Environmental Plan 2010, cll 1.1AA, 1.8A Wingecarribee Local Environmental Plan 2010 (Amendment No 38) Cases Cited: Gill v Donald Humberstone & Co [1963] All ER 180 Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd (1963) 109 CLR 276 R v Seller [2013] NSWCCA 42; 273 FLR 155 The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; 37 LGERA 178 Taylor v Owners of the Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Category: Principal judgment Parties: Wingecarribee Shire Council (Applicant) Alcide De Angelis (Respondent) Representation: Counsel: Mr T To (Applicant) Mr A Galasso SC / Mr S Fitzpatrick (Respondent) Solicitors: Swaab Attorneys (Applicant) Mills Oakley (Respondent) File Number(s): 2016/69921 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2016] NSWLEC 1 Date of Decision: 5 February 2016 Before: Craig J File Number(s): 2014/10029 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: On 5 February 2016 the Land and Environment Court answered a separate question with respect to a development application lodged by the respondent, Mr De Angelis, with the appellant, the Wingecarribee Shire Council. [1] Being an appeal from a judgment in the Class 1 jurisdiction of the Court, it is limited to a question of law and, because the answering of a separate question involves an interlocutory order or decision, the applicant requires leave. [2] 2. With respect to the jurisdiction of the Court, the separate question was directed to the construction and interrelationship of two environmental planning instruments and resulted in a decision on a question of law. So far as the question of leave is concerned, for the reasons explained below, the construction adopted by the primary judge was erroneous. Although the specific amending plan the subject of the dispute applied only to the respondent's land, the issue of construction is of general application in relation to a common provision in many similar instruments. Accordingly, there should be a grant of leave to appeal. 3. The question required to be answered in the Land and Environment Court read as follows: "Whether Development Application LUA 13/0968 lodged with Wingecarribee Shire Council on 11 November 2013 is saved by virtue of clause 1.8A of the Wingecarribee Local Environmental Plan 2010 or whether it is prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38)." 1. The drafting of the question left something to be desired; the second limb following the disjunctive "or" was formulated in quite different terms from the first limb. It was at least arguable that the second was not necessarily the obverse of the first and that the two limbs of the question did not completely describe the universe of possibilities. However, the parties argued the matter on the basis that, if the development application was not "saved" by clause 1.8A of the Wingecarribee Local Environmental Plan 2010 ("the 2010 LEP"), then it was prohibited by the Wingecarribee Local Environmental Plan 2010 (Amendment No 38) ("the 2015 amendment Plan"). Each was a local environmental plan given effect under s 34 of the Environmental Planning and Assessment Act 1979 (NSW) ("the EP&A Act"). 2. The answer given by the Land and Environment Court reversed the two limbs of the question, commencing with the proposition that the development application was "not prohibited" by the making of the 2015 amendment Plan, and then stating that "by operation of clause 1.8A" the application was to be determined as if the amendment had not commenced. In effect, and in accordance with the reasoning of the trial judge, the two limbs of the question were answered, respectively, "Yes" and "No". Operation of transitional provision 1. The operation of the transitional provision contained in the 2010 LEP was entirely straightforward. It applied to development applications lodged before its commencement date and had nothing at all to say about development applications lodged thereafter. The reasoning by which that simple conclusion came to be rejected cannot be accepted. 2. The 2010 LEP commenced on 16 June 2010. The relevant clauses for present purposes were as follows: "1.1AA Commencement This Plan commences on the day on which it is published on the NSW legislation website. … 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. Note. However, under Division 4B of Part 3 of the Act, a development application may be made for consent to carry out development that may only be carried out if the environmental planning instrument applying to the relevant development is appropriately amended or if a new instrument, including an appropriate principal environmental planning instrument, is made, and the consent authority may consider the application. The Division requires public notice of the development application and the draft environmental planning instrument allowing the development at the same time, or as closely together as is practicable." 1. Clause 1.1AA was in conformity with s 34(5) of the EP&A Act. The 2010 LEP was published on 16 June 2010. The development application was lodged on 11 November 2013. 2. Generally, savings and transitional provisions are not ambulatory, but deal with a precise point in time, namely the point at which a new legal instrument commences. That is so with respect to cl 1.8A; it is inconsistent with its purpose, as well as its language, to give it any additional operation. 3. Adopting a different view, as the primary judge noted, resulted in the clause being read in the following manner: [3] If a development application has been made before the commencement of this Plan [as amended by Wingecarribee Local Environmental Plan 2010 (Amendment No 38)], in relation to land to which this Plan [as amended] applies and the application has not been finally determined before commencement of this Plan [as amended] the application must be determined as if [the amendment to this Plan] had not commenced. 1. The words in square brackets have been added by way of exegesis. There is no principle of statutory construction which would justify such a rewriting of clause 1.8A; indeed, the exercise demonstrates clearly why the clause does not have an ambulatory effect proposed. 2. The proper construction of the 2015 amendment Plan must depend upon the purpose and language of that plan. It stated that it commenced on the date of its publication (cl 2). The plan had no savings provision, but took effect for all purposes on the date of promulgation, namely, 16 October 2015. As its purpose, derived from its effect, undoubtedly was to preclude a consent being given to the respondent's development application, the result proposed by the respondent could not be justified by reference to its purpose. 3. The first, and possibly the only, argument based on statutory construction to justify the result reached below relied on the language of the "note" to clause 1.8A. As the respondent's submissions accepted, the note did not form part of the 2010 LEP, by express provision of clause 1.5. That should have been sufficient in itself to prevent the note being construed in a manner which subverted the apparent purpose and intention of clause 1.8A. However, there was a further reason for rejecting the submission based on the note. It was submitted that the note would be "unnecessary if clause 1.8A was limited in its operation so as to apply only to a development application that had been made but not finally determined" before the commencement of the 2010 LEP. [4] However, that is simply not so; it involves a misreading of the note. 4. The note expressly referred to the effect of Part 3, Div 4B of the EP&A Act. That division "applies if a development application is made to a consent authority for consent to carry out development that may only be carried out if an environmental planning instrument applying to land on which the development is proposed to be carried out is appropriately amended." [5] In short, the division provides for a development application to be made in anticipation of an amendment to, for example, a zoning plan in an LEP. Thus, a development application could have been made in anticipation of the amendments made by the 2010 LEP. However, if such an application were to be determined "as if [the 2010 LEP] had not commenced", as required by clause 1.8A, the beneficial purpose of Div 4B of the EP&A Act would be frustrated. 5. There is no need for clause 1.8A to make express provision in that regard, because the EP&A Act will override the LEP to the extent of any inconsistency. The note itself does not have legal effect: rather, it refers the reader to the provision which does have such effect. Relevantly for present purposes, the note neither looks to future development applications, nor is it of no effect, on the assumption that clause 1.8A is not ambulatory. Accordingly, the note provides no support for the construction adopted by the Court below; rather the contrary. 6. A second argument relied upon in the Court below to justify the ambulatory construction commenced with the proposition that there was "no reason to read the words 'this Plan' as referring to the instrument as originally published on the legislation website in 2010." [6] Rather, it was said that, given the fact that subsequent amendments were likely (and have taken place) "this Plan" must be taken to include amendments as they were incorporated. That submission called in aid the principle explained by Taylor J in Ocean Road Motel Pty Ltd v Pacific Acceptance Corporation Ltd, [7] that "it is not open to question that where by amendment a new provision is inserted into a principal Act and that provision speaks of 'this Act' it speaks of the whole Act of which from the time of amendment it forms part and, of course, of the Act in the form which it may from time to time thereafter assume." 7. The same point was recently made by Bathurst CJ in R v Seller, [8] stating: "Where a statute is amended both the act which is amended and the amending act must be read together as a combined statement of the will of the legislature as a consequence of which the effect of the amending act may be to alter the meaning which the remaining provisions of the amended act bore before the making of the amendments." 1. All of that may be accepted, but it is simply beside the point. An amendment to a zoning plan in an LEP, absent some further provision, could not possibly be read as intending to amend a savings provision which operated at the commencement date of the LEP. In other words, unless the savings provision itself were intended to have an ambulatory effect (the proposition rejected above), absent some clear language, the 2015 amendment Plan will not alter that outcome. 2. Nothing that was said in The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [9] is inconsistent with this conclusion. That case turned on (a) the effect of a savings provision, namely cl 33 in the State Environmental Planning Policy No 53, by which undetermined applications were unaffected, but which was not in the same terms as cl 1.8) and (b) the creation of an accrued right protected by s 34(4)(b) of the EP&A Act, since repealed. [10] That section, which did not allow a provision of a statutory instrument to apply to existing undetermined applications, read as follows: 34 Environmental planning instruments—making, operation and inspection … (4) The amendment …, whether in whole or in part, of any environmental planning instrument does not affect: … (b) any right … accrued … under the instrument, … and any … legal proceedings or remedy may be instituted, continued and enforced as if the amendment …had not occurred. No equivalent provision was relied on in the present case. 1. Thirdly, the respondent relied below on a proposition that a local environmental plan "ought to be construed in the light of practical considerations, rather than by a meticulous comparison of the language of various provisions, such as might be appropriate in construing sections of an Act of Parliament". That language, being sourced to Lord Reid in Gill v Donald Humberstone & Co [11] was recently cited with approval by Leeming JA in Tovir Investments Pty Ltd v Waverley Council. [12] Again, the point of principle should be accepted. It does not, however, require an abandonment of basic principles of statutory construction, which require attention to the language of the instrument and its apparent purpose. So called "practical considerations", none of which was identified in the present case, do not empower the Court to embark on a wholesale rewriting of the instrument. 2. It follows that clause 1.8A of the 2010 LEP, which commenced on 16 June 2010, had no operation with respect to the development application lodged by the respondent on 11 November 2013. 3. It was not in dispute that, otherwise, the development application had to be determined in accordance with the law as it stood at the date of determination. [13] The second part of the question asked in the Land and Environment Court required a consideration of whether the 2015 amendment "prohibited" the proposed development. If, as was also assumed, the zoning of the specific land is, pursuant to the amendment, restricted to various forms of residential development, and that a development of the kind identified in the development application is prohibited development under s 76B, then the development is relevantly prohibited and the application will be refused. 4. Each party accepted in its submissions with respect to leave that costs in this Court should follow the event. However, the respondent said there were issues outstanding in the Land and Environment Court, including costs, which could not be dealt with in this Court, so that the matter must return to that court for final orders disposing of the appeal to that court. 5. In these circumstances, the Court should make the following orders: 1. Grant the applicant Shire Council leave to appeal from the decision of Craig J in the Land and Environment Court given on 5 February 2016. 2. Allow the appeal and set aside the answer given to the question for determination by the court. 3. In place of the answer given, answer the question as follows: Question: Whether Development Application LUA13/0968 lodged with Wingecarribee Shire Council on 11 November 2013 is saved by virtue of clause 1.8A of the Wingecarribee Local Environmental Plan 2010 or whether it is prohibited by the making of Wingecarribee Local Environmental Plan 2010 (Amendment No 38). Answer: (1) With respect to the first limb of the question, clause 1.8A of the Wingecarribee Local Environmental Plan 2010 has no application to the development application lodged on 11 November 2013 by the respondent; (2) With respect to the second limb of the question, the development contained in the development application lodged on 11 November 2013 by the respondent is prohibited under the zoning provided by the Wingecarribee Local Environmental Plan 2010 (Amendment No 38). . 1. Remit the matter to the Land and Environment Court. 2. Order that the respondent pay the costs of the Shire Council in this Court. 1. McCOLL JA: I agree with Basten JA. I would only add one observation. The primary judge interpreted cl 1.8A as precluding the result that the 2015 amendment Plan applied to the development application by rewriting it. However, in my view and as Basten JA has said, his Honour has done so impermissibly. His Honour's approach was too big and too much at variance with the language in fact used in the 2010 LEP and the amendment plan, to use the language of the plurality in Taylor v The Owners – Strata Plan No 11564. [14] 2. His Honour's rewriting made a nonsense of the amendment plan in the context of the 2010 LEP. The plain intention of the amendment plan, which applied only to the respondent's land, was that development of the nature it proscribed would not be permitted on that land. 3. PAYNE JA: I agree with Basten JA. 4. MCCOLL JA: The orders that Basten JA proposed are therefore the orders of the Court. ********** Endnotes 1. De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1 (Craig J). 2. Land and Environment Court Act 1979 (NSW), s 57(1) and (4)(d). 3. De Angelis at [49]. 4. De Angelis at [47]. 5. EP&A Act, s 72I(1). 6. De Angelis at [37]. 7. (1963) 109 CLR 276 at 280 (Owen J agreeing). 8. [2013] NSWCCA 42; 273 FLR 155 at [100]. 9. [2004] NSWCA 424; 37 LGERA 178. 10. Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (NSW), Sch 6 [6]. 11. [1963] All ER 180 at 183. 12. [2014] NSWCA 379 at [54]. 13. EP&A Act, s 79C; The Dubler Group at [20]. 14. [2014] HCA 9; (2014) 253 CLR 531 (at [38]) per French CJ, Crennan and Bell JJ. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2016