Hawkesbury City Council v Sammut [2002] NSWCA 18 (19 February 2002)

Last Updated: 6 March 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: HAWKESBURY CITY COUNCIL & ANOR v SAMMUT [2002] NSWCA 18

FILE NUMBER(S):

41061/00

HEARING DATE(S): 7 November 2001

JUDGMENT DATE: 19/02/2002

PARTIES:

HAWKESBURY CITY COUNCIL & ANOR v Daniel SAMMUT

JUDGMENT OF: Mason P Powell JA Young CJ in Eq

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): L & E 40202/99

LOWER COURT JUDICIAL OFFICER: Cowdroy J (25/9/2000); Talbot J (30/11/2000)

COUNSEL:

1st Appellant: M Tobias QC/ S Duggan

2nd Appellant: M Craig QC/ J Robson

Respondent: G Downes QC/ P Tomasetti

SOLICITORS:

1st Appellant: Abbott Tout

Respondent: Storey & Gough

CATCHWORDS:

Environmental law - development consent - permission granted for "rural industry" - ultra vires consent - Council had no power to consent to a development which was an "industry" - State Environment Planing Policy Amendment clarifying definition of "industry" to exclude "rural industry" was not effective to breathe retrospective life into a void consent - declaratory enactment - use authorised by the Consent prohibited - Council not estopped from challenging validity of its Consent. (D)

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Model Provisions 1980

Factories Shops and Industries Act 1962

State Environment Planning Policy No 30 - Intensive Agriculture (Amendment No 4)

DECISION:

See par 64.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41061/2000

L&E 40202/1999

MASON P

POWELL JA

YOUNG CJ in Eq

Tuesday 19 February 2002

HAWKESBURY CITY COUNCIL & Anor v Daniel SAMMUT

In 1998 the respondent sought development consent from Hawkesbury City Council to erect a shed on his land in order to operate a tractor repair business. The Council granted the consent in 1999 under its Local Environment Plan. The shed was completed in late 2000.

In 1999 the appellants (the Council and a neighbour) commenced proceedings in the Land and Environment Court seeking declarations as to the invalidity of the consent and injunctions restraining the completing of the development. The appellants argued that the development related to an "industry" which was a prohibited use under the relevant planning instrument, and that Mr Hagar, a neighbour, had been denied procedural fairness. The appellants' challenges failed and they repeated them on appeal. In late 2000 the State Environment Planning Policy No 30 - Intensive Agriculture (Amendment No 4) (SEPP) was made to clarify that a reference to an "industry" does not include a reference to "rural industry", and purported to apply to planning instruments made before and after the Amendment.

HELD by Mason P (Powell JA and Young CJ in Eq concurring) allowing the appeal:

If the tractor repair business could be fairly characterised as an "industry" then it was prohibited under the Hawkesbury City Council Local Environment Plan, and it was irrelevant that the use could also have been categorised under the separate permissible category of "rural industry" (Egan v Hawkesbury City Council (1993) 79 LGERA 321, and Elf Farm Supplies Pty Ltd v Hawkesbury City Council [1999] NSWLEC 261 applied). Repair of tractors was a "manufacturing process" under the Factories Shops and Industries Act 1962 and therefore was an "industry" under cl 4(1) of the Environmental Planning and Assessment Model Provisions 1980.

Therefore the Consent was void when made. The Amendment to the SEPP could not breathe life into it. The Amendment was not expressed with appropriate clarity to require interpretation as a declaratory enactment. The Consent is therefore to be treated as void ab initio (Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 applied).

A Council is not estopped from asserting that a prohibited use to which it had previously granted conditional consent is invalid (Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127 affirmed; Brickworks Ltd v Warringah Shire Council [1963] HCA 18; (1963) 108 CLR 568 distinguished).

Young CJ in Eq: An amendment to the definition section of an Act or Statutory instrument amends each section of the Act or instrument where the relevant word is employed. Unless plainly indicated, such an amendment is almost always construed as operating prospectively only.

Query whether s 19 of the EPA Act empowers the Governor to make a SEPP that is retrospective in effect (cf Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583).

ORDERS:

1. The order made by Cowdroy J in Hawkesbury City Council v Sammut [2000] NSWLEC 270 on the point of law is set aside.

2. In lieu declare that the use authorised by the Consent granted to the respondent on 15 January 1999 is prohibited and that in consequence the Consent is void.

3. The order made by Talbot J in Hawkesbury City Council v Sammut (2000) 111 LGERA 208 dismissing the application is set aside.

4. The proceedings are remitted to the Land and Environment Court to be dealt with in accordance with the reasons of the Court of Appeal.

5. Costs of the appeal to be borne by the Council.

6. Costs of the proceedings in the Land and Environment Court to remain at the discretion of that Court.

******************

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41061/2000

L&E 40202/1999

MASON P

POWELL JA

YOUNG CJ in Eq

Tuesday 19 February 2002

HAWKESBURY CITY COUNCIL & Anor v Daniel SAMMUT

JUDGMENT

1 MASON P: This appeal concerns a development Consent pursuant to which the respondent has constructed a large farm shed on his property at Pitt Town. The validity of the Consent is challenged by the appellants, who are the planning authority that granted it and the respondent's neighbour Mr Hagar.

2 In November 1999 the appellants commenced class 4 proceedings in the Land and Environment Court seeking declarations as to the invalidity of the Consent; and injunctions restraining the respondent from completing the development and requiring him to demolish the shed. In their amended points of claim the appellants challenged the validity of the Consent on the grounds that:

1. the development related to "industry" which was a prohibited use under the relevant planning instrument; and

2. Mr Hagar had been denied procedural fairness.

3 The proceedings in the Land and Environment Court were heard in two stages. At the first stage, Cowdroy J determined a separate question of law relating to the retrospective effect of cl 9 of State Environment Planning Policy No 30 (Hawkesbury City Council v Sammut [2000] NSWLEC 270 (the first judgment)). At the second stage, Talbot J ruled on the claim of denial of procedural fairness (Hawkesbury City Council v Sammut (2000) 111 LGERA 208 (the second judgment)). The appellants' two challenges failed and the proceedings were dismissed.

4 The challenges are repeated in this appeal. The respondent seeks to meet them by supporting the reasoning of the primary judges and by raising additional defences by notice of contention.

The facts in detail

5 The respondent owns land at 420 Old Stock Route Road, Pitt Town. It is zoned 1(c)(Rural "C") pursuant to the Hawkesbury City Council Local Environmental Plan 1989 (HLEP). Under that zoning, development for the purpose of "industry" was and still is prohibited.

6 In November 1998 the respondent lodged a development application seeking approval to erect a shed on his land.

7 On 15 January 1999 the Council issued consent to:

A rural industry - repair of farm machinery

and approved erection of the shed, subject to conditions. The plans incorporated in the Consent depict a large shed 18m x 36m in size, containing six bays.

8 Construction was effected pursuant to a Construction Certificate issued on 6 August 1999.

9 The precise scope of the permitted development has not been determined. Nevertheless, the respondent has indicated his understanding and intentions. In an affidavit sworn on 31 August 2000 he stated that the erection of the shed had been completed in August 2000 (at a cost in excess of $100,000) and that it is to be used in connexion with a business of repairing farm machinery, mainly turf harvesting equipment. The machinery is to be collected by truck from nearby farms. Repairs will take approximately three weeks. There would probably be no more than two machines in the shed at any one time (Blue 409-411).

10 Immediately before lodging the development application the respondent discussed his intentions with his neighbour, Mr Hagar and obtained from him written consent for the respondent:

... to seek approval for the construction of a shed and workshop for the repair of farm machinery. The hours of business will be 7am - 6pm Monday to Friday.

11 There is a dispute in the evidence as to the accuracy of the disclosure made by the respondent in the conversation leading up to the signing of this document; and as to the true understanding obtained by the neighbour. The judgments below contain no findings on these issues. (The resolution of such issues would also appear relevant to any question of injunctive relief in the proceedings if and/or to the extent that the use is prohibited.)

12 More pertinent to the procedural fairness issue is the disclosure made by the Council itself in a letter to the neighbour dated 16 November 1998 in the following terms:

420 OLD STOCK ROUTE ROAD, PITT TOWN

Council received an application for a home activity on the above property.

All plans and details of this proposal may be inspected between 8.00am and 4.30pm Monday to Friday or until 7.30pm Thursdays at Council's Offices at Windsor.

You are invited to inspect the proposal and submit written comments to Council by 30 November 1998. Please quote reference MA 609/98.

If you have any concerns about the proposal, it is suggested that you talk to the assessing officer so that all aspects may be fully discussed. Matters such as privacy, over-shadowing and impact on adjoining owners are a normal part of our assessment. Should you lodge a submission, your views will also be taken into account as part of our assessment.

Please note that a reply will be forwarded to you when the application is determined.

The details of your submission may be included in a Council report or forwarded to the applicant where it may help to resolve design problems, if any. Information may also be released under the NSW Freedom of Information Act where a member of the public can apply for access to documents concerning their personal affairs.

If you have any enquiries please contact Ms Beth Mooney - [phone].

13 The appellants submit that the letter is misleading in its reference to a "home activity" and that, in consequence, there was a want of procedural fairness to Mr Hagar whose amenity is obviously affected by the development. The respondent disputes this, as well as contending that the circumstances never gave rise to any duty to afford natural justice. In the second judgment Talbot J concluded this issue in favour of the respondent.

14 In my view the appeal turns on the legal issue addressed in the first judgment. The use is prohibited, with the result that there should be a declaration that the Consent is void and the proceedings should be remitted to the Land and Environment Court to address the remedial consequences. It is unnecessary for this Court to resolve the procedural fairness issues.

The appellants' challenge to the first judgment. Was the use prohibited?

15 The appellants were separately represented in the appeal, pursuant to leave granted by the Registrar. The submissions of counsel concentrated on separate issues, but were generally congruent.

16 The Council confined itself to challenging the first judgment, contending that the Consent is invalid because the proposed use was and is prohibited because it constitutes an "industry", which is expressly prohibited for the zone. Although the development had been approved as a "rural industry", which was not an expressly prohibited use for the zone, the Council submitted that the Consent was void: the use fell within the definition of "industry" and this was enough. The Council relied upon the reasoning in Egan v Hawkesbury City Council (1993) 79 LGERA 321.

17 In Egan this Court considered the question whether a quarry with crushing plant was a prohibited use under zone 1(b) (Rural B) of the HLEP. The relevant provisions were:

1. Objectives of zone

The objectives of this zone are:

(a) to primarily provide for agricultural uses and animal establishments;

(b) to ensure that development does not create unreasonable demands, in the present or in the future, for provision or extension of public amenities infrastructure;

(c) to prevent the establishment of traffic generating development along main and arterial roads; and

(d) to ensure that development maintains the rural character of the locality and to minimise disturbance to the landscape through clearing, earthworks and access roads.

2. Without development consent

Agriculture; dwelling houses.

3. Only with development consent

Any purpose other than a purpose included in item 2 and 4.

4. Prohibited

Advertising structures; bulky goods sales rooms or showrooms; commercial premises; industries; light industries; liquid fuel depots; motor showrooms; offensive or hazardous industries; residential flat buildings other than residential flat buildings Class A; service stations; shops; transport terminals.

18 Expressions such as "industry" , "extractive industry", "light industry" and "offensive or hazardous industry" were defined in the Environmental Planning and Assessment Model Provisions 1980 and those definitions were incorporated by reference into the HLEP (see cl 6).

19 The operation of a crushing plant fell within the definitions of both "industry" and "extractive industry". However, the Council and the developer argued in Egan that the reference to "industries" as a prohibited use in cl 4 of the zoning table implicitly excluded an industry which constituted an "extractive industry". It was, in essence, an argument based on the maxim expressio unius est exclusio alterius. The argument was supported by pointing to other provisions in the HLEP where both "extractive industries" and "industries" were stated to be prohibited uses (including for example zone 1(c) (Rural C) with which the present case is concerned).

20 The majority of the Court rejected this construction of the HLEP. Mahoney JA and Cripps JA held that it was sufficient that the crushing plant could fairly be described as an "industry". Once that point was reached, the use was prohibited. For example, Mahoney JA said (at 329):

In the end, the respondents' submission is to be accepted only if this Court is to infer the intention that, despite the meanings assigned in the definitions, consent can be given to a use which is proscribed because it also falls within another use which is defined by the local environmental plan. That, of course, can be done if there is, in the plan and the context, some appropriately compelling consideration for the departure from the ordinary and natural meaning of the terms. I have referred to the fact that both "industry" and the other industries are specified in the prohibition in item 4. That may have been done for drafting precaution or to indicate that other forms of "industry" are not proscribed. One may speculate that it was the one or the other. But, in my opinion, speculation is not a basis for departing from the ordinary and natural meaning of the terms of the plan.

There is one other matter. The land is, as the evidence shows, in what is pre-eminently a rural area, generally free from industrial activity other than the present. The context of the plan provides reason for thinking that in such an area, industries generally would be unwelcome. The plan, in terms, proscribes all other forms of industry and does so by use of the wide term "industry" as well as the more closely defined terms. For myself, I find difficulty in seeing why it should have been intended to throw open the area for extractive industry when all other - and less obtrusive - uses have been excluded. I do not think that the inferences to be drawn from the form of drafting of cl 9 are so strong that the draftsman should be inferred to have so intended. If that was to be done, I would have expected it to be done in terms rather than by such an inference.

21 Cripps JA said (at 332-3):

In my opinion, there is nothing in the context of the planning instrument that requires crushing activities to be excluded from "industries", as defined, in item 4. Indeed, it might be thought somewhat strange that a plan which on its face proscribes all industry from a rural zone should be read and understood as excluding from that proscription a particular type of industry such as the crushing of rock. If that was intended, one would have expected the draftsman to have said so in terms. "Extractive industry" does not appear in the uses in the subject zone although it is mentioned in other zones. The circumstance that there is an overlap between the first (or perhaps both) limbs of the definition of "industry" and the second limb of the definition of "extractive industry" does not of itself assist the respondent even if "extractive industry", as defined, can be notionally read as a permissible use in item 3 (and, in my opinion, it cannot). Once the activity is within the definition of "industry", it is prohibited whether or not it is permissible elsewhere: ...

22 Meagher JA dissented. He pointed to the prohibition of both "industries" and "extractive industries" (and/or "light industries") in other zones in the HLEP, including zone 1(c). From this he concluded (at 331) that:

The fact that in each example I have given one or more specific "industries" are prohibited as well as "industries" generally, indicates not only that the specific is not included in the general but is also a distinct entity in its own right.

23 On 14 December 1999 Egan's Case was applied in a situation even closer to the present one. In Elf Farm Supplies Pty Ltd v Hawkesbury City Council & Anor [1999] NSWLEC 261 Cowdroy J considered whether a mushroom substrate production plant was a prohibited use in land which (as in Egan) was zoned 1(b) (Rural B). The applicant contended that the proposed use was properly categorised as a "rural industry" as defined in the Model Provisions. Cowdroy J followed Egan and held that it was sufficient that the use could be categorised as an "industry". It mattered not that it could also be categorised as a "rural industry": it was still prohibited. In my view Cowdroy J was correct to view Egan as not confined to its particular facts of an extractive industry in zone 1(b). The case stands for more than that. It establishes a more general interpretative template for construing "industries" where shown as prohibited uses in the various land use tables of the instrument; and it rejects the application of expressio unius reasoning in this context.

24 I would decline the respondent's invitation to revisit Egan and to declare that the majority erred. The point of disagreement between the majority and the minority was one on which minds could easily differ, as they often do in matters associated with the maxim expressio unius est exclusio alterius. For what it is worth I prefer the literal approach of the majority. I am certainly unpersuaded of error or that this is one of those cases where the Court should revisit earlier precedent. That is enough to reject the application to reopen Egan.

25 Section 39 of the Environmental Planning and Assessment Act 1979 (the Act) empowers the Governor, on the recommendation of the Minister, to make a State environmental planning policy. SEPP No 30 (Intensive Agriculture) was first promulgated in 1989. Initially it dealt with cattle feedlots and piggeries. With presently irrelevant exceptions, SEPP No 30 applies throughout the State (cl 3) and it prevails over other Policies and environmental planning instruments to the extent of any inconsistency (cl 4).

26 On 2 August 2000 the Governor made State Environment Planning Policy No 30 - Intensive Agriculture (Amendment No 4) (hereafter Amendment No 4). It was gazetted on 4 August 2000. Relevantly it provided:

1 Name of Policy

This Policy is State Environmental Planning Policy No 30 - Intensive Agriculture (Amendment No 4).

2 Principal Policy

In this Policy, State Environmental Planning Policy No 30 - Intensive Agriculture is referred to as the Principal Policy.

3 Aims, objectives etc

This Policy aims to amend the Principal Policy to make it clear that the term "industry" where used in environmental planning instruments does not include rural industries.

4 Land to which this Policy applies

This Policy applies to the whole of the land to which the Principal Policy applies.

5 Amendment of Principal Policy

The Principal Policy is amended as set out in Schedule 1.

Schedule 1 Amendment

Clause 9

Insert after clause 8:

9 Rural industries

A reference in an environmental planning instrument, whether made before or after the commencement of this clause, to industry does not include a reference to rural industry.

Amendment No 4 was obviously made in response to Egan and Elf Farm Supplies.

27 In the proceedings that culminated in the first judgment the respondent persuaded Cowdroy J that Amendment No 4 was retrospective in the sense that it displaced the application of the reasoning in Egan and Elf Farm Supplies to the subject Consent.

28 This conclusion is challenged by the appellants in the first arm of the appeal. They accept that the words "whether made before or after the commencement of this clause" in cl 9 mean inter alia that cl 4 of the land use table for zone 1(c) is to be read from 4 August 2000 onwards as if the prohibited use "industries" read "industries, not including rural industries". The amendment meant that it was open to a Council to grant consent to a rural industry after 4 August 2000, but, the appellants submit, this would not breath life into an invalid consent granted before that date.

29 (If the appellants are correct then it is no longer possible to grant consent - even for a fresh application - because of further amendments to the HLEP made in March 2001.)

30 The respondent defends the validity of the Consent on two bases:

1) He seeks to distinguish Egan, arguing that a "rural industry" was always a permissible use; and

2) He supports the reasoning of Cowdroy J in the first judgment, arguing that Amendment No 4 had relevant retrospective effect.

The reasoning in Egan cannot be distinguished

31 The argument on the separate issue before Cowdroy J had proceeded on the assumption that the respondent had to invoke cl 9 of SEPP 30 to overcome the prohibition of "industry" in the HLEP and the reasoning in Egan and Elf Farm Supplies. The respondent challenged this assumption in its written submissions on appeal.

32 The land use table for Zone 1(c) in the HLEP provides:

1. Objectives of zone

The objectives of this zone are

(a) to primarily provide for a rural residential living style; and

(b) to prevent the establishment of traffic generating development along main and arterial roads.

2. Without development consent

Agriculture; dwelling houses.

3. Only with development consent

Any purpose other than a purpose included in item 2 or 4.

4. Prohibited

Advertising structures; bulky goods sales rooms or showrooms; commercial premises; extractive industries; industries; light industries; liquid fuel depots; motor showrooms; offensive or hazardous industries; residential flat buildings other than residential flat buildings Class A; service stations; shops; transport terminals; warehouses.

33 The respondent points to the omission of "rural industry" from the list of prohibited uses. Clause 4(1) of the Model Provisions defines "rural industry" to mean:

Handling, treating, processing or packing of primary products and includes the servicing in a workshop of plant or equipment used for rural purposes in the locality.

34 It is submitted that the use authorised by the Consent is that of rural industry because the shed is for servicing plant or equipment used for rural purposes in the locality. The appellants seek to rebuff this contention on two bases. The narrower basis is that the shed is for repairing vehicles as distinct from servicing them. (The respondent contends that it is too late to raise this fresh point on appeal.) The broader basis is that the respondent's approach to the table of prohibited uses is contrary to that approved in Egan. I agree with the appellants on the broader basis: if the use is as an industry that is sufficient because such use is prohibited. I find it unnecessary to consider the respondent's narrower point.

35 Does the Consent authorise use as an "industry"?

36 Clause 4(1) of the Model Provisions also defines "industry" to mean:

a. Any manufacturing process within the Factories Shops and Industries Act 1962; or

b. The breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business;

but does not include an extractive industry.

37 The Factories Shops and Industries Act 1962 defines "manufacturing process" to mean:

... any handicraft or process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning, washing, breaking-up or adapting of any goods or any articles or any part of an article, for trade or sale or gain or as ancillary to any business, and includes any handicraft or process declared by the Governor, pursuant to this Act, to be a manufacturing process.

38 In my view the repair of farm machinery is clearly a "manufacturing process" as defined. I would reject the respondent's submission that farm machinery are not goods or articles.

39 The respondent also sought to support its argument by the submission that it would be a surprising result if a rural industry allowing the repair of farm machinery were not permitted in a rural zone. I find this type of consequentialist rhetoric to be unhelpful both generally and in this particular case, where the respondent's business is in no way confined to fixing his own damaged machinery or that of his neighbours in the Rural C zone.

Amendment No 4 did not have relevant retrospective effect

40 Cowdroy J ordered that:

1. The point of law for determination is to be decided in favour of the respondent. Clause 9 was intended to have effect as if the term "rural industry" was not included in the term "industry" at any time in the Hawkesbury Local Environmental Plan.

...

41 His Honour's reasons were:

6. The council contends that it is not retrospective in its operation. The council submits that clause 9 states that when the consent authority considers an application for a development such as that granted to the respondent, there is scope to determine whether the term "rural industry" in any planning instrument should be considered whether made before or after the commencement of clause 9. Put another way, it is submitted the amendment gives the scope to a consent authority to take into account the impact of clause 9 whether the planning instrument in question was made before or after 4 August 2000. In support of its submissions, council has referred the Court to the decision of Moss and Phillips v Donohoe [1915] HCA 62; (1915) 20 CLR 580 at 621, in which Griffith CJ referred to the well established rule of construction that statutes are not to be construed so as to have retrospective effect unless they contain express words to that effect. In summary the council submits that there is no retrospective element in the amendment provided by clause 9, but that its effect merely provides power to the consent authority to entertain a rural industry when considering whether consent should be granted.

7. For the respondent, it is submitted that the provisions of s31 of the Interpretation Act 1987 enable the Court to give a wide interpretation to the words used in clause 9. Section 31(1) of the Interpretation Act 1987 provides an act or instrument shall be construed as operating to the full extent of but so as not to exceed the legislative power of Parliament. By virtue of clause 3 of that Act, instrument includes a statutory rule and includes an instrument made under any such instrument. Ultimately, it is a question of construction to establish the intention of Parliament in making the amendment.

8. The clue to interpretation is contained in clause 3 of the amendment. The aims and objectives of the amendment are stated as follows:-

"This Policy aims to amend the Principal Policy to make it clear that the term `industry' where used in environmental planning instruments does not include rural industries."

9. When one considers the actual words used in the clause 9, it is obvious that the draftsman intended that the words were to have retrospective effect. The words "whether made before or after the commencement of this clause" refer to environmental planning instruments. If clause 9 was to be construed as counsel for the council submits there would be no need to incorporate that phrase. That is, the words "whether made before or after the commencement of this clause" would be otiose. The test could easily have provided, "a reference in an environmental planning instrument to industry does not include a reference to rural industry".

10. The Court concludes that the words "whether made before or after the commencement of this clause" were inserted to ensure that an interpretation of the relevant environmental planning instrument the words "rural industry" were never to be included as an "industry". Such construction is consistent with the aims and objectives of the amendment wherein it is stated that the aim of the amendment was to make it plain that the term industry, where used in environmental planning instruments, does not include rural industries.

42 The appellants cite the well known statement of Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

43 The appellants accept that retrospectivity may be indicated by the necessary intendment of statutory language in the sense that "the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears wholly unreasonable" (Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28 at 32).

44 The appellants submit that the matters relied upon by Cowdroy J, namely the stated aim of Amendment No 4 and the words "whether made before or after the commencement of this clause" in cl 9, are insufficient to evince the necessary intendment of retrospectivity. The latter words have ample work to do in enlarging (prospectively) the scope of planning instruments extant when Amendment No 4 was made. If Egan applies, there was no power to give consent in 1999 and nothing in Amendment No 4 altered that situation or its legal consequences.

45 In my view, these submissions must be accepted.

46 I do not think that my interpretation of cl 9 is affected by cl 4 of SEPP No 30, as the respondent contended. That clause (which was in SEPP No 30 at its inception in 1989) purported to give SEPP No 30 primacy over other planning instruments and Policies. The critical words of cl 9 have independent work to do in relation to environmental planning instruments extant in 2000.

47 The respondent, supporting the reasoning of Cowdroy J, submitted that Amendment No 4 had retrospective effect.

48 The respondent also argued that no legitimate environmental law purpose was served by interpreting Amendment No 4, so that its application turns upon whether consent was granted before or after its commencement. I do not agree. A consent is an administrative act that generates significant rights. The necessary power must exist at the time the consent is given. There is a world of difference between allowing that power to turn in futuro upon prior events or matters (something that is commonplace) and altering the legal effect of a failed attempt to use the power by breathing retrospective life into a void consent and thereby altering legal rights stemming from the date of its purported exercise (see generally Coleman v Shell Co of Australia Ltd (1943) 45 SR(NSW) 27 at 31 per Jordan CJ).

49 In oral submissions senior counsel for the respondent contended that the retrospectivity issue was not to be approached through the template offered in cases such as Maxwell v Murphy. Amendment No 4 was said to be a declaratory enactment. We were referred to the judgment of Lockhart J in Commonwealth v Orr (1981) 37 ALR 653 when he said (at 659):

The classification of statutes is important primarily because of the different interpretations adopted by the courts to various classes of statutes. Statutes are classified according to their objects and are commonly described as declaratory, codifying or consolidating, remedial or penal. Consolidating Acts "are Acts which gather together and combine in one Act all other Acts in force relating to a particular topic": Pearce on Statutory Interpretation, at p8. Examples are the Uniform Companies Acts and Bankruptcy legislation. Codifying Acts are passed to gather together and incorporate within one Act all legislation and all common law upon a particular matter. Examples are the Sale of Goods Acts, the Bills of Exchange Acts and the Partnership Acts. Codifying Acts are in one sense declaratory in that they declare in the form of a code all the law upon a particular subject.

As to declaratory Acts: "If a doubt is felt as to what the common law is on some particular subject and an Act is passed to explain and declare the common law, such an Act is called a Declaratory Act". Craies on Statute Law 7th ed, at p58. Declaratory Acts are an exception to the presumption against retrospectivity because they are not regarded as altering the law, but as making its meaning clear. Sometimes declaratory Acts are passed "to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes" Craies, at p58.

But to say that a statute is declaratory is not to deny that it is itself the source of legal rights and powers.

50 The respondent places particular reliance upon the language of cl 3 of Amendment No 4 which states (emphasis added):

3 Aims, objectives etc

This Policy aims to amend the Principal Policy to make it clear that the term "industry" where used in environmental planning instruments does not include rural industries.

51 It may be accepted that the drafter of Amendment No 4 was not willing to concede the correctness or application of Egan and Elf Farm Supplies. However, I cannot accept that the stated aim of making something clear is enough to displace the principle stated by Dixon CJ in circumstances such as the present. Amendment No 4 alters legal rights and (according to the respondent) it does so retrospectively and significantly. Parliament may enact "declaratory" laws that have such effect and, arguably, so too can the Governor when making a SEPP (see par 53 below). But the words used in Amendment No 4 define the nature and extent of any "clarification" and its retroactive scope. They are not expressed with appropriate clarity to require interpretation as a declaratory enactment. The narrower interpretation of Amendment No 4 which I favour still conforms to the stated aims and objectives of cl 3 of SEPP No 30 and the language of the Amendment as a whole.

52 The principle stated by Dixon CJ is one of substance, not mere form. In my view it cannot be sidestepped in the present case by the respondent invoking the contestable label of "declaratory" as if that swept away the point of substance. That would be to engage in circular reasoning.

53 It is therefore unnecessary to do more than note the further problem raised by the Court during argument, namely the issue whether the generally expressed power conferred by s19 is sufficient to justify making a SEPP that displaces or alters vested rights (cf Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583 at 593-5 per Katz J).

54 Senior counsel for the respondent submitted that the Consent could survive challenge merely because relief was sought after the making of Amendment No 4. It was suggested that this was consonant with an entirely prospective approach to the construction of Amendment No 4. There were passing references to the jurisprudential debate as to the meanings of invalidity and voidness in administrative law. The temptation to follow counsel down this winding trail can and should be resisted. The Consent purports to operate from its inception. If the use was prohibited at that time, there was no power to issue it. This Court can and should so declare.

55 Once determined to be invalid and so declared by a court the Consent will be treated as void ab initio (Hoffmann-La Roche & Co Ltd v Secretary of State for Trade and Industry [1975] AC 295 at 365; Forbes v New South Wales Trotting Club [1979] HCA 27; (1979) 143 CLR 242 at 277).

56 The discretionary matters raised in argument touching upon the Council's conduct in issuing the Consent which it now challenges and Mr Hagar's (disputed) conduct in consenting in advance cannot in my view rise to the point where the appellants should be denied this usual incident of success in challenging ultra vires action (cf Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789; (2000) 99 FCR 251 at 267 per Lehane J). The public interest is served by such relief. The question of injunctive relief touching the continuation of the shed or the activities which the current owner wishes to conduct there raise separate discretionary issues which will have to be considered by the Land and Environment Court in light of this Court's reasons.

57 The respondent contended that the Council at least was estopped from challenging its own Consent on the basis of ultra vires. The judgment of Windeyer J in Brickworks Ltd v Warringah Shire Council [1963] HCA 18; (1963) 108 CLR 568 at 577 was invoked. Whatever that passage indicates, it does not represent a decision that an ultra vires act, indubitably established in fact, can never be challenged at the suit of the administrator who did it (see generally Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211-214 per Gummow J). In my view Stein J (as he then was) was correct to decide that the public interest in the carrying out of statutory duties requires that a Council is not estopped from asserting that a prohibited use to which it had previously granted conditional consent is invalid (Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127).

Disposition

58 The order made by Cowdroy J on the point of law should be set aside. In lieu, it should be ordered that the use authorised by the Consent is prohibited and that in consequence the Consent is declared void.

59 The order made by Talbot J dismissing the application should also be set aside. The proceedings should be remitted to the Land & Environment Court to be dealt with in accordance with the reasons of this Court. The parties agree that as yet unaddressed discretionary matters will be involved in the remaining (remedial) issues in the proceedings.

60 The setting aside of orders made by Talbot J, based in part as they are upon the earlier decision of Cowdroy J, will mean that any remaining issues in the proceedings can be addressed untrammelled by any question of res judicata or issue estoppel as regards the question of procedural fairness. Whatever was disclosed in the dealings between the parties that preceded the Consent it was not the intention to commence an "industry" on the site. It is unlikely that the resolution of the remedial phase of the proceedings will turn upon any of the issues litigated in the second phase of the proceedings before Talbot J, but (to the extent that it is otherwise) the judge hearing the proceedings would not be bound by the limited findings of Talbot J. (I say "limited", because there is uncertainty in my mind as to the extent to which Talbot J was reciting evidence concerning vital conversations with Mr Hagar and the extent to which findings were being made relevant to the many issues fought as to procedural fairness.) In these circumstances it is better for this Court not to address the issues raised by Mr Craig QC who argued the appeal for Mr Hagar.

61 The appellants seek costs, accepting that one set is all that is appropriate in the circumstances. (This was a condition of the grant of leave for separate representations.)

62 The respondent submits that the Council should pay all costs, including the respondent's costs on an indemnity basis, by parity of reasoning with will construction summonses. The Council is challenging the validity of its own Consent. The Council submits that costs should follow the event because the respondent rejected the Council's advice that the Consent was unlawful as far back as November 1999. Somewhat inconsistently, the Council also points out that any concession from the respondent is valueless given that the Consent enures for the benefit of third parties who are successors in title.

63 In my view the proceedings were necessary to resolve the status of the Consent. In the circumstances it is appropriate that the costs in this Court should be borne by the Council. The costs below should remain at the discretion of the Land and Environment Court, to be determined in light of the balance of the proceedings there.

64 I therefore propose the following orders:

1. The order made by Cowdroy J in Hawkesbury City Council v Sammut [2000] NSWLEC 270 on the point of law is set aside.

2. In lieu declare that the use authorised by the Consent granted to the respondent on 15 January 1999 is prohibited and that in consequence the Consent is void.

3. The order made by Talbot J in Hawkesbury City Council v Sammut (2000) 111 LGERA 208 dismissing the application is set aside.

4. The proceedings are remitted to the Land and Environment Court to be dealt with in accordance with the reasons of the Court of Appeal.

5. Costs of the appeal to be borne by the Council.

6. Costs of the proceedings in the Land and Environment Court to remain at the discretion of that Court.

65 POWELL JA: I agree with Mason P.

66 YOUNG CJ in Eq: Young CJ in Eq. I agree with Mason, P, but wish to add a few additional comments.

67 Had the question of construction of Amendment No 4 to SEPP 30 not made the questions otiose, it would have been necessary to consider some very significant questions of administrative law.

68 First, it must always be remembered that any amendment to the definition section of an Act or Statutory Instrument, actually amends each section of the Act or clause of the instrument where the relevant word or expression is employed. Such an amendment thus, unless plainly indicated, is almost always construed as operating prospectively only.

69 Secondly, as referred to in the judgment of Mason P, for the reasons given by Katz J in Rokobatini's case [1999] FCA 1238; (1999) 90 FCR 583, 593-5, a Policy which operated in the retrospective manner as held by Cowdroy J may well be beyond power. The answer to this question so far as concerns a NSW instrument is assisted by s 39 of the Interpretation Act, 1987.

70 Thirdly, the question would have arisen as to whether there can ever by declaratory legislation which is declaratory with retrospective effect. A fortiori, can one have such legislation where there is no doubt about the construction of the measure concerned as the Supreme Court has already declared its true meaning?

71 As Bennion says in his "Statutory Interpretation" 3rd ed, (Butterworths, London 1997) p 542, "except when legislating, Parliament has no power authoritatively to interpret the law. That function belongs to the judiciary alone." The Governor and Executive Government are in no stronger position. I feel moved to make this statement in view of the creeping habit of government departments issuing press releases after losing a case to the effect that a court has not construed an enactment according to the intention of Parliament (with the implied assertion that the department had superior ability over the construction of statutes administered by it than the judiciary).

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LAST UPDATED: 05/03/2002