Land and Environment Court New South Wales Medium Neutral Citation: Ku-ring-gai Council v Antony Comanos [2018] NSWLEC 24 Hearing dates: 01 March 2018 Date of orders: 05 March 2018 Decision date: 05 March 2018 Jurisdiction: Class 6 Before: Robson J Decision: See orders at [62] Catchwords: APPEAL – appeal from decision of Local Court pursuant to s 42(2B)(b) – appeal limited to a question of law – whether appeal gives rise to a question of law alone – defendant charged with carrying out development without consent – whether the development exempt development – meaning of pathway in Exempt and Complying Codes SEPP – no legal error disclosed – appeal dismissed Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 42 Environmental Planning and Assessment Act 1979 (NSW) s 76A Interpretation Act 1987 (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.15, 2.55, 2.46 Cases Cited: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 Hope v Bathurst City Council (1980) 144 CLR 1 Matic v Mid-Western Regional Council [2008] NSWLEC 1419 Mosman Municipal Council v Spice (No 2) [2015] NSWLEC 136; (2015) 212 LGERA 332 Kovacevic v Queanbeyan City Council [2016] NSWCA 346; (2016) 225 LGERA 303 R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 R v XHR [2012] NSWCCA 247 Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; [1994] HCA 34 Woollahra Municipal Council v Sahade [2012] NSWLEC 76 Category: Principal judgment Parties: Kur-ring-gai Council (Appellant) Antony Comanos (Respondent) Representation: Counsel: J Smith (Appellant) N Eastman (Respondent) Solicitors: Hones Lawyers (Appellant) Bruce Macdonald Lawyers (Respondent) File Number(s): 2017/00259285 Publication restriction: Nil Judgment Introduction 1. Before the Court is an appeal brought by Ku-ring-gai Council ('Council') pursuant to s 42(2B)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) ('Appeal Act') against the decision of the Local Court to dismiss a charge against Antony Comanos ('respondent'). The respondent was charged with carrying out development that required development consent contrary to s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'). 2. The development in question consisted of a new tiered entry including stairs at the front of the dwelling at 15 Finlay Road, Warrawee ('site'). In dismissing the proceedings, the Magistrate, Reiss LCM, found that the development on the site constituted a "pathway" and was therefore "exempt development" for the purposes of cl 2.55 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ('Codes SEPP'). 3. In so finding, the Magistrate gave significant weight to the decision of Preston CJ of LEC in Woollahra Municipal Council v Sahade [2012] NSWLEC 76 ('Sahade'). In that case, his Honour held at [33] that: In the context of cl 2.55, a pathway is a way or route which provides access to the specified types of associated development. These types of associated development may not necessarily be at ground level (a balcony, deck, patio, pergola, terrace or verandah may be elevated above ground level). Access to these types of associated development may need to be constructed above ground level, such as by a ramp or stairs. Sloping land and changes in topography across land may also necessitate construction of means of access above ground level, such as by an elevated walkway, a ramp or stairs. The reference in cl 2.55 to a pathway being constructed or installed also indicates that the pathway may be above ground level. Hence, I do not accept that a pathway in cl 2.55 cannot include a stairway, which provides access to a terrace, verandah or other type of associated development specified in cl 2.55. 1. After Council issued an order pursuant to s 121B of the EPA Act and an accompanying Penalty Infringement Notice in the amount of $1,500 ('PIN') in respect of the development, the respondent sought and received a building certificate in respect of the works. Therefore, the only remaining issue before the Magistrate, and consequently before this Court, was the PIN. 2. Since the decision in Sahade, cl 2.55 of the Codes SEPP has undergone amendment. At the relevant time in Sahade, the relevant provision provided as follows: The construction or installation of a pathway or paving associated with a balcony, deck, patio, pergola, terrace or verandah is development specified for this code. 1. The relevant provision now provides: The construction or installation of a pathway or paving, including any paving of a deck, pergola, patio or terrace is development specified for this code. 1. The dispute between the parties to be resolved in this appeal concerns whether this legislative change has altered the legislative context such that the Magistrate fell into legal error by relying on the decision in Sahade. The respondent further raises the question of whether the case as pleaded in this Court involves "a question of law alone" as required by the Appeal Act. Relevant Statutory Context 1. Section 42(2B) of the Appeal Act relevantly provides: The prosecutor (including the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against: … (b) an order made by the Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence, … but only on a ground that involves a question of law alone. 1. The Codes SEPP provides at cl 1.15(1): Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy. 1. It is convenient to set out Subdiv 28 of the Codes SEPP, which deals with pathways and paving, in its entirety: Subdivision 28 Pathways and paving 2.55 Specified development (1) The construction or installation of a pathway or paving, including any paving of a deck, pergola, patio or terrace is development specified for this code. (2) Subclause (1) does not include any paving of a driveway, hard stand space or turning or parking area to be used by vehicles for any purpose, including the delivery or loading of goods. 2.56 Development standards The standards specified for that development are that the development must: (a) be constructed or installed so that any surface water or runoff is disposed of by a drainage system that is connected to the existing stormwater drainage system, and (b) if constructed or installed in a residential zone or Zone RU5: (i) not require cut or fill more than 600mm below or above ground level (existing), and (ii) not result in the total area of all paved areas (including driveways and hard stand spaces) on the lot exceeding 15% of the area of the lot or 150m², whichever is the lesser, and (c) if constructed or installed in a residential zone: (i) on a lot that has a width at the front building line of not more than 18m—have at least 25% of the area forward of the building line as landscaped area, and (ii) on a lot that has a width at the front building line of more than 18m—have at least 50% of the area forward of the building line as landscaped area, and (d) if constructed or installed in a zone (other than a residential zone or Zone RU5): (i) not require cut or fill more than 1m below or above ground level (existing), and (ii) not reduce any required landscaped area along a boundary with a road or an adjoining lot on which a dwelling is located. Note. The Standard Instrument defines landscaped area as a part of a site used for growing plants, grasses and trees, but not including any building, structure or hard paved area. 1. Clause 2.11 provides that "the construction or installation of a balcony, deck, patio, pergola, terrace or verandah (whether free standing or attached to the ground floor level of a building, or roofed or unroofed)" is exempt development. However, this is subject to cl 2.12 which relevantly provides that, at subcl (i), such development must have a "floor height not more than 1m above ground level (existing)". Council's submissions 1. Council submits that, having regard to the fact that the Magistrate found that the deck component of the unauthorised development was more than one metre above the ground, cl 2.11 did apply, and that the Magistrate fell into error by construing that the entire structure collectively constituted a "pathway". 2. Council points to the Court of Criminal Appeal's decision in R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 ('JS') as authority for the proposition that where a judicial officer misconstrues a statute, that constitutes "an error of law alone". 3. Council submits that the Magistrate fell into legal error by applying Sahade without having regard to the fact that a pathway is no longer required to be "associated with" a "balcony, deck, patio, pergola, terrace or verandah" under cl 2.55 of the Codes SEPP. 4. Council submits that the Codes SEPP should be construed in accordance with the ordinary principles of statutory construction: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]. Such a construction should have regard to the provision's context and purpose (see Matic v Mid-Western Regional Council [2008] NSWLEC 1419 at [12]-[13]). Citing s 33 of the Interpretation Act 1987 (NSW), Council submits that a construction which would promote the purpose or object underlying the instrument in question is to be preferred to a construction which would not. 5. Applying these principles, Council submits that the term "pathway" must be read having regard to the context of Subdiv 28 of the Codes SEPP. It notes that there is no development standard prescribed in cl 2.56, and submits that in the absence of any relevant standard, especially in the context that the legislature considered it necessary to prescribe a standard for the "cut and fill" of a pathway, the term "pathway" should be given its ordinary, grammatical meaning having regard to its context. 6. Council submits that had the legislature intended to include "staircases" in cl 2.55, it could have done so but did not. In Council's submission, to read "staircases" into the definition of "pathway" would produce a result that is irrational because it would permit the construction of staircases and decks of any height. Council submits that such an approach does not accord with the objects of the Codes SEPP, which include, pursuant to cl 1.3(d), providing for development that is of "minimal environmental impact". 7. Council acknowledges that Preston J dealt with a similar argument in Sahade. At [34] his Honour held: I also do not accept that the requirement in s 76(2) of the EPA Act and cl 1.3(b) of the SEPP, that development identified as exempt development is of a class or description that is of minimal environmental impact, disentitles a stairway from being a pathway within cl 2.55. A stairway is not inherently or always not of minimal environmental impact. To the contrary, in certain situations, a stairway might have less environmental impact than other means of access such as ramps and paths at ground level. For example, on a sloping site, an elevated stairway straight down the fall line of the slope might have a lesser footprint and involve less earthworks than longer ramps and paths at ground level which need to zig zag up a slope and involve cut and fill. 1. However, Council submits that the present case may be distinguished because the amended provisions of cl 2.56 provide a development standard that pathways must not require any more than one metre of cut or fill. In Council's submission, this amendment reinforces the object under cl 1.3(b) of the Codes SEPP. 2. In response to the respondent's submissions that the appeal does not deal with "an error of law alone", Council submits first, that the proper interpretation of a statute is an error of law alone as per JS; second, that the claimed error of law is clearly stated in its Summons; and third, that the legal error upon which the appeal is brought is separate to any question of fact, the facts of the case being largely agreed between the parties. 3. In response to the respondent's submission that the Codes SEPP was correctly applied in any event, Council submits that the change in wording in cl 2.55 is sufficient for it to succeed, but that Sahade could be factually distinguished on other bases and that if heard after the amendments were made, Sahade would have been decided differently. 4. To that end, Council provides four grounds upon which it says Sahade could be distinguished from the present case: first, the stairway in Sahade joined two areas of ground at ground level, providing a pathway between them whereas the stairs in the present matter were erected to enable access to the front door and new decking; second, the stairway in Sahade was only timber whereas the present matter deals with two separate flights of stairs along with decking; third, the stairway in Sahade extended an existing pathway to an existing verandah; and fourth, the stairway in Sahade was held by Preston J at [33] to be a "way or route which provides access to the specified types of associated development". Respondent's submissions 1. The respondent submits first that the appeal does not involve "a question of law alone". To this end, the respondent cites the decision of Beazley JA (as her Honour then was), with whom Hall and Campbell JJ agreed, in R v XHR [2012] NSWCCA 247 ('XHR') at [21] onwards: [21] It has been held that the right of appeal, conferred by s 107 on a ground that "involves a question of law alone", is narrower than an appeal "on a question of law" and that neither of those phrases is equivalent to "error of law". There will, however, be some overlapping of matters that fall within each description. Thus, although s 107(2) does not speak in terms of "error of law", an appellate court is not entitled, upon the identification of a "question of law alone" to embark upon a review of the trial judge's reasons and substitute its own determination. Error in the identified question of law must be demonstrated. … [23] An appeal on a mixed question of fact and law does not fall within s 107(2). In PL the Court also held, at [25], that no appeal lay pursuant to s 107(2) where the question in issue was whether the trial judge had correctly applied the relevant legal principles to the facts. As Spigelman CJ explained, at [26], the determination of whether the trial judge had correctly applied the principles of law to the facts necessarily required an assessment of those facts. In other words, the process of "applying" a principle of law to the facts involved a mixed question of fact and law and thus did not fall within s 107(2). However, "if the question of law can be stated and considered separately from the facts with which it may be connected", there is a "question of law alone"… … [25] Before leaving these introductory remarks, one further comment needs to be made. In JS, Spigelman CJ stated, at [74]-[75], that for the purposes of an appeal under s 107, it was necessary for the notice of appeal to particularise, with some precision, the "question of law alone" said to be involved in each specific ground of appeal. In observing that direction, the Crown in this case did not seek, by way of an independent ground of appeal, to rely upon an argument that the trial judge failed to properly apply the principles relating to a directed verdict. The Crown's grounds of appeal were those identified in the notice of appeal (some citations omitted). 1. Having regard to XHR, the respondent submits that the Magistrate found as a matter of fact that Council had not established its case, which is not a question of law alone. Further, the respondent submits that Council has failed to articulate with sufficient precision the question of law alone. Last, the respondent submits that the complaint in the Summons is, at its best, an application of fact to law and therefore not a question of law alone. 2. In the alternative, the respondent submits that there was no error in the application of the Codes SEPP in this case. It notes that it is not submitted that Sahade was incorrectly decided and therefore that the only ground upon which a legal error could be found is that since Sahade was handed down, cl 2.55 has changed to the extent that it was no longer appropriate to rely on the decision. 3. The respondent submits that the words "associated with" were not material to the decision of Preston J in Sahade. To this end, it extracts his Honour's judgment at [26]: In order to be development specified in cl 2.55 of the exempt development code, the stairway must be: (a) a pathway; (b) associated with a balcony, deck, patio, pergola, terrace or verandah. 1. Because his Honour dealt with these criteria separately, the respondent submits that his reasoning is equally apposite to the facts of this case. The respondent cites Sahade at [33] where it was said "a stairway is a pathway up or down". It submits that this is the correct approach to construing cl 2.55. 2. Further, the respondent submits that the effect of the exclusion of the words "associated with" from cl 2.55 is to broaden rather than narrow the reach of the clause. A stairway may now be a pathway up or down whether or not it is associated with a balcony, deck, patio, pergola, terrace, verandah, or anything else. Consideration 1. Self-evidently, if the appeal is not limited to a "question of law alone", this Court's jurisdiction is not enlivened and the remainder of the proceedings will fall away. It is therefore convenient to deal with that matter first. 2. In JS, Spigelman CJ, with whom Mason P, McClellan CJ at CL, and Hidden and Howie JJ agreed, said at [74]-[75]: [74] Plainly, the formulation "a question of law alone" is more restrictive than the formulation "a question of law". Furthermore, the terminology "question of law" is not equivalent to "error of law". Nevertheless, at least by way of particularisation, it is necessary for a Notice of Appeal to identify the "question of law alone" said to be involved in specific grounds for appeal. Such questions of particularisation do not involve a rigid requirement. In the present case it was at all times tolerably clear what, at least with respect to the first count on the indictment, the relevant question of law must be. [75] Nevertheless, it is a requirement of a Notice of Appeal in this context that the specific "question of law alone" said to arise should be identified with reasonable precision. 1. His Honour went on to say at [80]-[83]: [80] The Respondent submitted that the grounds in the proposed amended Notice of Appeal involved a mixed question of fact and law and were accordingly not "a question of law alone" as established in Williams v The Queen (1986) 161 CLR 278 at 287, 301 and 314. The direction to the jury, the Appellant submitted, was based on the combined effect of her Honour's interpretation and the absence of evidence as to the accused's knowledge that any proceedings were federal judicial proceedings, within the definition of the Crimes Act. [81] The application of the reasoning in Williams supra, to the formulation in s107 of the Act is by no means clear. The Criminal Code of Tasmania, which established the right of appeal from an acquittal under consideration in Williams, was different from the recent New South Wales statute. The Tasmanian provision referred to an appeal by leave "against an acquittal on a question of law alone". The New South Wales provision is more expansive in its reference to "against any … acquittal on any ground that involves a question of law alone". The reference to the 'involvement' of a "question of law alone" in a "ground" is wider than the use of the word "on" in the Tasmanian statute. [82] In any event, Williams is distinguishable. The issue there under consideration concerned the discretionary exclusion of evidence. That is quite different from what happened in the present case, which involved separate steps. The first was her Honour's determination of the proper construction of the statutory offence. The second was her Honour's determination, on that construction, that there was no evidence capable of supporting the charge. This was not a mixed question of fact and law. There was a question of law, followed by a question of mixed law and fact. [83] The interpretation of the provision was the relevant, indeed determinative, step and that step does answer the description of a "question of law alone". Accordingly, the words "such acquittal" in s107(2), which must be read relevantly as stating "acquittal by a jury at the direction of the trial judge", did involve a question of law alone. 1. The reasoning of Spigelman CJ in JS is plainly apposite to the present case. Where there is a question of statutory construction which must then be applied to the facts, it is not correct to say that the entire exercise is a mixed question of fact and law. Rather, the determination of the correct meaning of the provision is a question of law alone that precedes the application of the law to the facts. 2. This approach was upheld by Beazley JA (as her Honour then was) in XHR. Notably, at [22], her Honour said that the "construction of a provision of a statute involves a question of law alone" (emphasis in original). To the extent her Honour could be said to have put a gloss on the reasoning in JS, such a gloss is to be found at [23] where she said: As Spigelman CJ explained, at [26], the determination of whether the trial judge had correctly applied the principles of law to the facts necessarily required an assessment of those facts. In other words, the process of "applying" a principle of law to the facts involved a mixed question of fact and law and thus did not fall within s 107(2). However, "if the question of law can be stated and considered separately from the facts with which it may be connected", there is a "question of law alone": Williams at 287 per Gibbs CJ. 1. The application of the principles was discussed in this Court in Mosman Municipal Council v Spice (No 2) [2015] NSWLEC 136; (2015) 212 LGERA 332 ('Spice'). In that case, the appellant had prosecuted the respondent for what it claimed was the unlawful cutting down of trees on its property. The Local Court had dismissed the proceedings on the grounds that the respondent did not exercise control over the conduct of its sub-contractors who carried out the development in question. On the question of whether there had been an error of law, Biscoe J held at [20]-[21]: Depending upon what findings of fact were made on the evidence, it may have been open to the magistrate to decide that he was not satisfied beyond reasonable doubt that the respondents had in fact directly instructed the contractor to cut or lop the subject trees or all of them. However, I am unable to interpret the magistrate's reasons for judgment as indicating that that was the basis, or a basis, upon which he dismissed the charges. The magistrate does not appear to have made any specific findings of fact in that regard or to have referred to the evidence in a way that could safely be understood by inference as supporting that interpretation. The only specific findings of fact in the judgment are in the second sentence of the second paragraph quoted above at [14]. The opening words I have emphasised above in that sentence are: "I am satisfied that the defendants did not have any direct intervention with the sub-contractors, or in fact there's no evidence to say that they did." This seems to me to be the only discernible reason why the magistrate dismissed the council's case of vicarious liability based upon the respondent's direct authorisation of the contractor to cut down or lop the subject trees. It was an acceptance of the respondents' legally erroneous submission (put to the magistrate as a "critical" point) that the direct authorisation principle did not apply because the contractor's workers were sub-contractors with whom the respondents had no contract and consequently the causal link between the respondents and the work was severed. That was a pure error of law, as is common ground in the appeal. Under the direct authorisation principle, it is irrelevant whether the directly authorised contractor carried out the work through sub-contractors or otherwise. 1. In light of this, Biscoe J found at [23]: Consequently, in my opinion, there was an error of law alone, the appeal should be upheld and the matter remitted to the Local Court to be determined according to law. 1. The Summons filed by Council on 25 August 2017 framed the appeal grounds in the following way: The magistrate misconstrued clause 2.55 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP) in finding that the structure, the building of which comprised the development allegedly carried out by the Respondent without consent, was a "pathway" within the meaning of clause 2.55 of the SEPP and was thus "exempt development" within the meaning of the Environmental Planning and Assessment Act 1979 (NSW). 1. It was submitted by the respondent that this involved, at best, a mixed question of fact and law, and further, that Council had not adequately articulated the question of law alone as per the requirements set out by Spigelman CJ in JS. 2. In Hope v Bathurst City Council (1980) 144 CLR 1, Mason J, with whom Gibbs, Stephen, Murphy and Aickin JJ agreed, said at [7]: Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J in Hayes v Federal Commissioner of Taxation, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v Cotton's Trustees, which was adopted by Latham CJ in Commissioner of Taxation v Miller, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only (citations omitted). 1. There was some argument in oral submissions as to whether this was a case where the facts were "fully found". In any event, it is uncontroversial that an error in the process of statutory construction gives rise to an error of law alone. As per Spigelman CJ's comments in JS, as long as the question of construction can be separated from the finding of fact, this will not be a mixed question of fact and law, but rather a question of law alone. 2. In my opinion, the question of statutory construction to which the Magistrate turned his mind was the meaning of the word "pathway" in the Codes SEPP. According to Council, it was in the process of answering this question that the Magistrate fell into legal error, and it is this purported legal error which is articulated in the Summons. 3. Arguably, the Summons should have omitted the reference to the Magistrate's application of the facts to the law as he found it, but I do not consider this to be fatal to Council's case. The question of law alone which is challenged on the appeal is, at the very least, made "tolerably clear" as per Spigelman CJ in JS. 4. Therefore, I turn my attention to the question of whether the Magistrate fell into legal error in his interpretation of the Codes SEPP. I note at the outset that it was submitted by Council, and not contested by the respondent, that as a species of delegated legislation, environmental planning instruments should be construed according to the ordinary rules of statutory interpretation: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]. I agree that this is the correct approach. It has been applied numerous times, most recently by the Court of Appeal in Kovacevic v Queanbeyan City Council [2016] NSWCA 346; (2016) 225 LGERA 303 at [83]. 5. In the course of his ex tempore judgment, the Magistrate said the following: I might say that looking at some of the dictionary definitions that have been referred to generally and particularly in the decision that has been handed up of the chief justice and my view of it, I would not necessarily have been of the view independently of the chief justice, it would not have struck me that these stairs and landing structure would be considered to be a pathway. It does not strike me, in terms of general definitions and perhaps common-sense approach that I might have taken independently of this decision, it would not have struck me as falling under a pathway. Paragraph 33 of the decision, in a very broad way, the chief justice agreed with, I quote para 33, "I agree with Ms Sahade's submissions and reject Council's submissions" so that is fairly broad; so it rejects council's submissions that the height and structure put it outside what one might consider to be a pathway; those submissions are rejected. All the submissions of behalf of the respondent there are said to be accepted. 1. In summary, the Magistrate found: I feel that the Court, the conclusion of the Court is significantly influenced by the decision of the Chief Justice in Sahade. Arguably, bound by it but even if not bound it is powerful obiter that should be applied in this Court. 1. It is not suggested that the decision of Preston J was in any way legally erroneous. Rather, it is put by Council that the legislative context in the present case is sufficiently different from that considered in Sahade for the Magistrate to fall into legal error by relying on it as being determinative of the present dispute. 2. Clause 2.55, as it was both before and after the amendment, is extracted at [5] and [6] above. Prior to its amendment, the clause permitted "construction or installation of a pathway or paving associated with a balcony, deck, patio, pergola, terrace or verandah" as exempt development. I noted in the course of hearing the appeal that it is agreed between the parties that, in the earlier version, the absence of an Oxford comma between the words "pathway" and "or" meant that the construction or installation of a pathway needed to be associated with the specified species of development. That was the approach to construction that Preston J took in Sahade. 3. However, as the respondent submitted, his Honour dealt with the two requirements disjunctively. Hence, at [26], he said: In order to be development specified in cl 2.55 of the exempt development code, the stairway must be: (a) a pathway; (b) associated with a balcony, deck, patio, pergola, terrace or verandah. 1. Relevantly, his Honour also concluded, at [36]: I find, therefore, that the stairway is a pathway under cl 2.55. 1. Whilst his Honour stated at [33] that "I do not accept that a pathway in cl 2.55 cannot include a stairway, which provides access to a terrace, verandah or other type of associated development specified in cl 2.55" (emphasis added), this comment must be seen in the context of the legislative requirement that both limbs are met. This observation was merely a restatement of the terms of cl 2.55. 2. Furthermore, his Honour accepted Mrs Sahade's submissions at [33], which relevantly included, at [32], the proposition that a "stairway is a pathway up or down". 3. It is clearly the case that Preston J reached a considered conclusion in Sahade that the word "pathway" may include a stairway for the purposes of cl 2.55. It was agreed by the parties that this conclusion did not represent part of the ratio of the case because the development in Sahade was found not to be exempt development for other reasons, but notwithstanding its status as obiter, as a reasoned conclusion on the question of statutory construction, it is not to be lightly set aside. 4. After this decision, the legislative amendment was effected. The effect of the amendment is that paving includes "paving of a deck, pergola, patio or terrace" but that pathways and paving are otherwise unlimited by association to anything. 5. In his judgment, the Magistrate commented of the legislative amendment: There is some speculation, nothing specific before the Court, to establish why the change there; was it in specific reaction to the decision of the chief justice; if it was, one would have hoped if it was a reaction and attempting to reduce and restrict somehow the impact of the decision there would have been a far easier, more clear way for that to be structured rather than leaving a bit of mystery as to where it was connected and that it somehow meant to bolster what would have otherwise been in the council position in that case moving forward. It is not clear that it is specifically a reaction to this decision. It is certainly not clear that it somehow means that there is a new definition of pathway that should be adopted by the courts. Again, the simple way to overcome if it was a reaction to this particular decision, Sahade, there could have been a specific definition of pathway put into the SEPP. That, of course, was not adopted so that the amendment, whilst I can see that the old wording did have an impact on the chief justice's reasoning; nevertheless he did decide that a stairway can be a pathway in these similar types of circumstances. 1. With respect, the Magistrate is entirely correct. If this amendment was directed towards the decision in Sahade, other, easier methods of overcoming Preston J's reading of "pathway" were clearly available to the legislature. 2. Indeed, although it was not raised by either party, I comment in passing that the re-enactment presumption states that where a particular word or phrase has been given a judicial gloss and the word is re-used by the legislature, it is presumed to have the meaning it was held in the case law to have (see Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; [1994] HCA 34 at 106-7). 3. I do not consider that the re-enactment presumption is determinative of the present case, but to the extent the legislature amended cl 2.55 in response to Sahade, one could infer that it was content with Preston J's interpretation of the word "pathway", given that it remains in the provision with no extra qualifications, apart from the limitation on "infill" found in cl 2.56. Indeed, as the respondent submitted, the only qualification to a pathway in cl 2.55, that the pathway be "associated with" specified types of development, has been removed. 4. Some passing comment was also made in oral argument to the rule of strict construction, which states that where ambiguity arises in a legislative provision which has penal consequences, the ambiguity should be resolved in favour of the accused. I note that the relatively recent Court of Criminal Appeal authority on this in Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 confirmed this rule's status as one of last resort. At [55], Leeming JA, with whom Johnson and Adamson JJ agreed, noted that: Although it was at the forefront of his written submissions, the principle invoked by Mr Grajewski [that is, the rule of strict construction] does not exclude the ordinary rules of construction... Indeed, Gibbs J's qualified observation in Beckwith v The Queen (1976) 135 CLR 569 at 576 that the "rule is perhaps one of last resort" has much more recently been reiterated in unequivocal terms: by Nettle and Gordon JJ in Re Day (No 2) [2017] HCA 14 at [276] and in the joint judgment in Aubrey v The Queen [2017] HCA 18 at [39]. I do not for a moment understand the High Court, by referring to "rules" and "last resort", to be implying that the task of ascertaining the legal meaning of a statute is mechanistic, to be determined by the application of rules, amongst which the penal character of the statute is the last to be invoked. The process is considerably more nuanced, reflecting as it does the constitutional relationship between the various arms of government… [A] statute's penal character is to be regarded as a very minor consideration to be taken into account in ascertaining its legal meaning in light of its text, context and purpose (some citations omitted). 1. I do not consider the rule of strict construction is necessary to decide the case. 2. As I have said above, the decision in Sahade included a considered finding on the part of Preston J that in the context of cl 2.55, "pathway" includes a stairway. The legislative amendment to cl 2.55 since that decision has not meaningfully altered the grounds for that conclusion, and have in fact broadened its effect. 3. At first instance the Magistrate relied upon Sahade to reach his decision and, in doing so, did not disclose legal error. Indeed, I find that the Magistrate was correct. If any practical difficulty is occasioned by this approach, then the problem lies with the Codes SEPP itself, and its resolution is the prerogative of the legislature. 4. Unless the parties wish to be heard on the question of costs, I therefore propose to dispose of the appeal with costs. Orders 1. The Court orders that: 1. The appeal is dismissed with costs. ********** 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: 06 March 2018