A recent decision of the NSW Court of Appeal (Court) in Elachi v Council of the City of Shoalhaven  NSWCA 16, highlights the importance of clear drafting for legislative drafters, particularly when considering the interrelationship between legislative instruments and sets out some key principles of statutory interpretation.
Mr Elachi (the Appellant) cleared an area of native vegetation on his land in the Shoalhaven local government area. He appealed the Land and Environment Court's (LEC) decision that the vegetation was cleared without development consent where such consent was needed under the Environmental Planning and Assessment Act 1979 (EP&A Act).
The Appellant's argument
The requirement for development consent for the clearing of trees or vegetation is found in clause 5.9 of the Shoalhaven Local Environmental Plan 2014 (LEP) which provides as follows:
5.9 Preservation of trees or vegetation
Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner.
(3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:
(a) development consent, or
(b) a permit granted by the Council.
(8) This clause does not apply to or in respect of:
(a) the clearing of native vegetation:
(i) that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003, or
(ii) that is otherwise permitted under Division 2 or 3 of Part 3 of that Act, or
(9A) Subclause (8)(a)(ii) does not apply in relation to land identified as "Cl 5.9" on the Clauses Map.
The Appellant sought to rely on an exemption in the Shoalhaven Development Control Plan 2014 (DCP) and argued that the DCP did not apply and as such, for the purposes of clause 5.9(3) of the LEP, development consent was not required. This is because of the wording of clause 5.9(3), that the prohibition applies to trees and vegetation "to which [the DCP] applies".
In particular, the DCP sought to outline exemptions identifying activities which do not require a development approval from Council in various circumstances including, relevantly:
"b) The clearing of native vegetation that is authorised by a development consent or property vegetation plan under the NV Act 2003 or that is otherwise permitted under the NV Act 2003 consistent with Australian Standard Protection of trees on development sites (AS 4970-2009)".
According to the Appellant, the Native Vegetation Act 2003 (NV Act) allowed a certain amount of clearing to be carried out without consent under the NV Act and as such, the DCP did not require consent under the EP&A Act to be obtained.
The Court's decision
The Court held that the exemption in the DCP did not assist the Appellant for two reasons:
- The content of a DCP is strictly confined by the EP&A Act. Section 26 provides that an EPI can make provision for a DCP to specify the species or kinds of trees or other vegetation included in or excluded from a provision. As such, the DCP could not provide activity exemptions for the purpose of clause 5.9 of the LEP.
- Section 74C of the EP&A Act provides that a provision of a DCP has no effect to the extent that it is the same or substantially the same as an EPI provision. The LEC held that the language of the exemption in the DCP upon which the Appellant relied was substantially the same as the language of clause 5.9(8) of the LEP, and was therefore of no effect. Clause 5.9(8) provides an exemption from the need to obtain development consent where clearing is permitted under the NV Act.
To get around the inconsistency between the LEP and DCP, the Appellant argued that clause 5.9(8)(a)(ii) was 'removed' from the LEP altogether. This is because of subclause 9A, which provides that subclause 8(a)(ii) does not apply to certain mapped land, which included the Appellant's land.
The effect of the Appellant's argument was that clause 5.9 no longer had anything to say about clearing permitted under the NV Act. As such, the exemption in the DCP neither overlapped with, nor was it inconsistent with, clause 5.9 of the LEP.
The Court's main objection to this was that subclause 9A does not "remove" anything from clause 5.9, rather, it disengages the exemption permitted by subclause 8(a)(ii). The Appellant argued that the Court's approach meant that clause 5.9 "covered the field" or dealt "completely and exclusively" with the NV Act, an approach which was impermissible because it used a method of dealing with inconsistency developed for the purposes of section 109 of the Commonwealth Constitution. However, the Court said that there was no prohibition on adopting such analysis.
The Court held that there was "little room for doubt" as to the proper construction of clause 5.9, drawing on several factors, including the following:
- The EP&A Act sets out a clear hierarchy of legislative instruments, with the EP&A Act at the top, EPIs at a second level and finally DCPs. Because of this, the Court said it would be remarkable if the application of the NV Act were to be found in the DCP, rather than the LEP.
- Clauses 5.9(2) and (3) do not indicate, either expressly or by implication, that a DCP will deal with the operation of the NV Act. If the LEP was silent about the interrelationship between the EP&A Act and the NV Act, one would not expect to find the relationship addressed in a DCP.
- The primary purpose of clause 5.9(8) is to remove the need for dual authorisation. For a DCP to confer an exemption so that the need for authorisation is removed altogether, is inconsistent with the operation of the LEP.
As such, the Court held that the DCP exemption had no effect. The appeal was dismissed and the Appellant ordered to pay the respondent's costs.
The case sets out a number of important statutory interpretation principles, including the following:
- when dealing with inconsistency, regard should be given to the institutional setting in which the conflict arises, with a proper understanding of the functions of separate institutions and the relationship between them;
- the EP&A Act sets out a clear hierarchy of plans which must be taken into account when considering the inconsistency of provisions; and
- the primary purpose of the legislation should also be considered.
The case is a reminder of the limited application and scope of DCPs. Councils need to exercise care when drafting DCPs, paying particular attention to section 74C of the EP&A Act. Otherwise, the DCP or certain of its provisions can be held to be invalid.
Lastly, the case highlights the necessity of clear drafting, particularly when prohibitions and exemptions rely on other legislative instruments. The Court said that much confusion would have been avoided if clause 5.9(3) of the LEP used the words "to which this clause applies" rather than "to which any such development control plan applies", the effect of which was to provide for a DCP which limited its own operation and formed the basis of the Appellant's argument.
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