Citation: Benedict Industries Pty Ltd v Sutherland Shire Council [2015] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 26 October 2015
Judge(s): Macfarlan JA (principal judgment); Adams J and Fagan J (agreeing)
Background
An operator of a quarry at West Menai in the Sutherland Shire faced five summary charges under the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act") arising from the construction of a large earthen bund around part of the quarry's perimeter. Four of those charges alleged contraventions of the Sutherland Shire Tree and Bushland Preservation Order 2001 ("TPO"), which the Council claimed to have made by resolution on 21 May 2001.
The quarry operator applied to the Land and Environment Court to have the four TPO-related charges dismissed on the basis that the TPO was invalid. Pepper J rejected that application in June 2015, and the quarry operator sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW).
The Council did not oppose leave to appeal, and the Court of Criminal Appeal granted leave, given the appeal was arguable and, if successful, would have resulted in the dismissal of all four charges.
Legal Issues
The appeal raised three distinct challenges to the validity of the TPO:
- Whether the Council's resolution of 21 May 2001 actually purported to make the TPO, on a proper construction of its terms
- Whether the Council had legal power to make the TPO, particularly given that the TPO was expressed to apply across the entire Sutherland Shire local government area, including parts not covered by the planning instrument that authorised its making
- Whether the repeal on 29 November 2006 of the Sutherland Shire Local Environmental Plan 2000 ("SSLEP 2000"), which was the source of the Council's power to make the TPO, impliedly repealed the TPO itself
Decision
Did the Council purport to make the TPO? The Court confirmed the primary judge's conclusion that the Council's resolution of 21 May 2001 did constitute a decision to make the TPO. The resolution, read in context alongside the committee reports that preceded it, clearly expressed an intention that the draft TPO take effect from the date of its gazettal. Although the resolution did not use the word "make," its meaning was unambiguous when construed as a whole.
Did the Council have power to make the TPO? The SSLEP 2000 authorised the Council to make a TPO, but that instrument did not apply to the Menai town centre or the Kurnell peninsula. The TPO was expressed on its face to apply to all land in the Sutherland Shire, which extended beyond the SSLEP 2000's geographic reach. The Court accepted, applying the principle from Andrews v Howell [1941] HCA 20, that invalid provisions of a statutory instrument can be read down to preserve what remains valid, unless the maker's intention was that the instrument operate in full or not at all. The Court found no such intention here: the Council's aim to cover the whole Shire did not mean it would prefer the TPO have no operation if it could not achieve complete coverage. The TPO was therefore valid to the extent it applied to land within the SSLEP 2000's area.
Was the TPO impliedly repealed when the SSLEP 2000 was repealed? The Court held that the repeal of the SSLEP 2000 did not impliedly repeal the TPO. Section 32 of the Interpretation Act 1987 (NSW) preserves instruments made under a repealed law unless the repealing legislation manifests a contrary intention. The Court found no such contrary intention in the later environmental planning instrument that replaced the SSLEP 2000. The TPO accordingly survived as a valid instrument after 2006, to the extent it had always been valid.
Reading down and the misleading appearance argument. The quarry operator also argued that reading down the TPO's geographic scope would mislead the public, since its face still stated it applied to the whole Shire. The Court rejected this: the same consequence arises whenever any instrument is read down under s 32 of the Interpretation Act, and reducing geographic scope does not affect the TPO's operation on land to which it properly applies.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a council resolution does not need to use specific words such as "make" to constitute a decision to make a statutory instrument; the resolution must be construed as a whole in its procedural context.
- Where a preservation order is expressed to apply beyond the geographic scope of the planning instrument that authorises it, the order is not entirely invalid. Under the principle in Andrews v Howell, it is read down to apply only to land within the authorising instrument's area, unless the maker intended the instrument to operate in full or not at all.
- Repeal of an environmental planning instrument does not automatically repeal subsidiary instruments made under it. Section 32 of the Interpretation Act 1987 (NSW) preserves such instruments unless the repealing legislation indicates a contrary intention.
- In dismissing the appeal, the Court confirmed that an argument about public confusion arising from a read-down instrument carries no special weight: reading down is a standard statutory consequence under the Interpretation Act and does not, of itself, invalidate the remaining operation of an instrument.
- No error was established in the primary judge's refusal to dismiss the four criminal charges; the charges were to proceed to hearing in the Land and Environment Court.
Legislation and Cases Referenced
Legislation:
- Environmental Planning and Assessment Act 1979 (NSW), ss 24, 26
- Criminal Appeal Act 1912 (NSW), s 5F
- Interpretation Act 1987 (NSW), s 32
- Local Government Act 1993 (NSW), s 371
Cases:
- Andrews v Howell [1941] HCA 20; 65 CLR 255
- Bank of New South Wales v The Commonwealth [1948] HCA 7; 76 CLR 1
- Harrington v Lowe [1996] HCA 8; 190 CLR 311
- Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504