Collier & Anor v Brisbane City Council & Anor [2006] QPEC 90

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Collier & Anor v Brisbane City Council & Anor; Sexton & Anor v Brisbane City Council & Anor [2006] QPEC 090 PARTIES: ALAN COLLIER and BERNA COLLIER Appellant V BRISBANE CITY COUNCIL Respondent and MAXINE HORNE Co-respondent and WILLIAM JOHN SEXTON and PAMELA MAUD SEXTON Appellant V BRISBANE CITY COUNCIL Respondent and MAXINE HORNE Co-respondent FILE NO/S: BD2438 and BD2439 of 2005 DIVISION: Appellate PROCEEDING: Determination of preliminary issue ORIGINATING COURT: Planning and Environment Court, Brisbane. DELIVERED ON: 31 August 2006 DELIVERED AT: Brisbane HEARING DATE: 15 August 2006 -- 1 of 21 -- 2 JUDGE: Robin DCJ ORDER: Preliminary point determined against Co-respondent, Applications for striking out of appeals refused CATCHWORDS: Integrated Planning Act 1997 s 2.1.18, s 2.1.23, s 6.2.2 – Statutory Instruments Act 1992 s 23 - adverse submitter appeals alleged to be incompetent - whether co-respondent’s development application was impact assessable depended on the site being a “heritage place” for the Heritage Place Code (part of Brisbane City Plan 2000) – definition picked up a register of properties in a specified local planning policy – whether the local planning policy impermissibly “regulated” development – whether changes to IPA commencing on 16.10.03 precluded the subsequent amendment of the local planning policy whereby the site was added to the register. COUNSEL: Mr Gibson SC for appellants Mr Hinson SC for respondent Mr Lyons QC and Mr D O’Brien for co-respondent SOLICITORS: Connor O’Meara for appellants Brisbane City Legal Practice for respondent Deacons for co-respondent [1] These are appeals whose competency depends on the appellants’ status as adverse submitters, as to all appearances they were in the course of the public notification process following the co-respondent’s development application in respect of proposed extensions to her residence at 66 Markwell Street, Hamilton. Public notification was undertaken on the understanding that the development application required impact assessment because that property was a “heritage place”. The relevant definition of that expression in Brisbane City Plan 2000, vol 1, ch 3 at p 69 is: “A premises identified in the Heritage Register of the Heritage Register Planning Scheme Policy (Appendix 2).” [2] At ch 5 p 89, one finds the Heritage Place Code which applies “in assessing building work (including demolition), reconfiguring a lot or operational work on a -- 2 of 21 -- 3 premises that includes a heritage place or on a premises adjoining a heritage place.” The Policy is there acknowledged as including the “register of heritage place sites” and in other ways, such as for its usefulness in determining whether other places have cultural heritage values. By par 1.2, subject to an exception for code assessment of “minor building work” (not contended to be relevant), building work, etc on the site of a heritage place is subject to impact assessment. [3] The Policy in Appendix 2 (Brisbane City Plan 2000 vol 2, Appendix 2, p 93) has established a register of heritage places “made up of three parts: • places of cultural heritage significance (Schedule 1) • places of special cultural significance to Indigenous people • places of natural heritage significance (Schedule 2).” Section 2 identifies criteria for entry in the Heritage Register and s 3 the process for entry in the Heritage Register: “The process for entry in the Heritage Register will be in accordance with the planning scheme policy amendment process outlined in the Act.” The Policy has been amended on occasions, but not in respect of the passages quoted. The court was provided with copies of the original Policy which came into effect with Brisbane City Plan 2000, a version of 1 July 2003 and, more recent, a version “updated January 2004” which includes the co-respondent’s site in the burgeoning Schedule 1 for the first time. The development application was lodged subsequently, on 24 December 2004. The amendment of the Policy whereby the site was included in Schedule 1 followed the commencement of amendments to the Integrated Planning Act 1997 (IPA) relevant to planning scheme policies such as the Policy, which commenced on 16 October 2003. -- 3 of 21 -- 4 [4] The co-respondent in each of the appeals contends that her property does not fall within the regime of the Heritage Place Code, that the Policy may not be relied on as making it subject thereto. She argues that the Council’s processes which have clearly been designed to achieve that outcome fail, because the Policy offends a prohibition included in the IPA at the time of its original adoption against regulating development. It is further contended that following amendments to the IPA coming into force on 16 October 2003, there may be limited scope for planning scheme policies such as the Policy to provide for defined matters, but that these do not authorise what has been done. [5] Chapter 2 Pt 1 of the IPA deals with “local planning instruments”, defined in Schedule 10 to mean the three species of instrument dealt with. Divisions 1, 2 and 3 relate to planning schemes, division 4 relates to temporary local planning instruments and division 5 to planning scheme policies, which are plainly subsidiary to planning schemes. As originally enacted, the IPA provided: “Division 5 – Planning scheme policies Meaning of ‘planning scheme policy’ 2.1.16(1) A ‘planning scheme policy’ is an instrument that supports the local dimension of a planning scheme and is made by a local government under this division. (2) To the extent that a planning scheme policy is inconsistent with a planning scheme, the planning scheme prevails. Area to which planning scheme policy applies 2.1.17 A planning scheme policy may apply to all or only part of a planning scheme area. Adopting planning scheme policies in planning schemes 2.1.18 The only document made by a local government that the local government’s planning scheme may, under the Statutory Instruments Act 1992, section 23, apply, adopt or incorporate, is a planning scheme policy. -- 4 of 21 -- 5 Process for making or amending planning scheme policies 2.1.19(1) The process stated in schedule 3 must be followed for making or amending a planning scheme policy. (2) The process involves 3 stages – • proposal stage • consultation stage • adoption stage.” [6] The purport of “local dimension” may be gathered from s 2.1.4(2): “A local dimension of a planning scheme matter is a dimension that is within the jurisdiction of local government but is not a regional or State dimension.” Those broader dimensions must be coordinated and integrated by a planning scheme (s 2.1.3(1)). Subject to safeguards, a planning scheme policy may be valid despite lack of full compliance with Schedule 3: s 2.1.20. It has effect from the first notification in a newspaper of the day of its adoption, unless a later commencement is stated: s 2.1.21. Repeal requires a resolution and publication of it in the newspaper, but not the Schedule 3 procedures: s 2.1.22, subsection (6) of which provides that: “If a new planning scheme (other than an amendment of a planning scheme) is made for a planning scheme area, all existing planning scheme policies for the area are repealed on the day the adoption of the new planning scheme is notified in the gazette.” - explaining why the Policy presently relevant was adopted along with Brisbane City Plan 2000. [7] Division 6 dealt with local planning instruments generally in the following way: “Local planning instruments have force of law 2.1.23.(1) A local planning instrument is a statutory instrument under the Statutory Instruments Act 1992 and has the force of law. (2) A local planning instrument may not prohibit development on, or the use of, premises. -- 5 of 21 -- 6 (3) A planning scheme or a temporary local planning instrument can regulate a use of premises, but only – (a) by applying to the use a code identified in the planning scheme or temporary local planning instrument; and (b) if – (i) the use is a natural and ordinary consequence of making a material change of use of the premises happening after the code took effect; and (ii) the making of the material change of use is assessable or self-assessable development. (4) A planning scheme policy can not regulate development on, or the use of, premises. (5) Subsections (2) to (4) apply despite subsection (1).” The co-respondent contends that the Policy contravenes subsection (4). The contrary position advanced by the Council (understandably concerned to preserve the standing of its planning scheme policies) and by the two sets of appellants (wishing to establish their standing to appeal) is that what regulates is the planning scheme which incorporates the Heritage Place Code, and that the Policy does not regulate. [8] The court was regaled with dictionary definitions of “regulate” in terms of “to subject to ... restrictions” (applied in Canada in United Taxi Drivers’ Canada Fellowship of Southern Alberta v Calgary (City) [2004] 1 SCR 485 at par 13), “to control by rule subject to restrictions” or “to control or direct by rule, principle or method”. In Swan Hill Corporation v Bradbury (1937) 56 CLR 746, the High Court had to consider a power to “regulate and restrain” the erection of buildings. In the result not even the second possibility authorised prohibition. At 762, Dixon J said: “The first word used in stating the end or purpose of the power now in question is one which may be said almost to have acquired in such a connection a prima facie legal meaning. For the force of the word ‘regulating’ has been discussed repeatedly and the cases dealing with -- 6 of 21 -- 7 its application have grown only too familiar. Prima facie a power to make by-laws regulating a subject matter does not extend to prohibiting it either altogether or subject to a discretionary licence or consent. By-laws made under such a power may prescribe time, place, manner and circumstance and they may impose conditions, but under the prima facie meaning of the word they must stop short of preventing or suppressing the thing or course of conduct to be regulated...” [9] The written submissions of Mr Lyons QC and Mr O’Brien neatly set out the co-respondent’s argument: “19. The effect of the Policy is clear. It seeks to regulate development on, or use of, premises by determining the level of assessment. 20. The effect of the Policy, by way of the Register, is to determine the level of assessment for development. By changing the level of assessment, the Policy has the effect of altering the way in which a person is able to develop or use the premises. By raising the level of assessment for building work to ‘impact assessable’, for example, an applicant can no longer seek to develop land without complying with the public notification requirements of Chapter 3, Part 4 of IPA or being exposed to the possibility of submitters appealing any decision by the local government under Chapter 4 of IPA. 21. In determining the validity of the Policy, it is not to be looked at in isolation; rather it must be read with the provisions of City Plan, whose operation it alters. 22. The change in the level of assessment has the consequence that the ability to develop land is controlled or subjected to restrictions. It imposes a new restriction on undertaking development, namely, that an application for development approval be subject to impact assessment, before it can be approved, and the development carried out. In that sense, determining the level of assessment ‘regulates’ the development or use of the premises. There can be no doubt that an owner of land would perceive a raising of the level of assessment, to say impact assessable, as an attempt to control or ‘regulate’ the development of their land. 23. That the determination of the appropriate level of assessment for a development amounts to regulation of the development or use of premises is confirmed by s 2.1.3 of IPA. It relevantly provides: Key elements of planning schemes -- 7 of 21 -- 8 2.1.3.(1) A local government and the Minister must be satisfied that the local government’s planning scheme – (a) coordinates and integrates the matters (including the core matters) dealt with by the planning scheme, including any State and regional dimensions of the matters; and (b) identifies the desires environmental outcomes for the planning scheme area; and (c) includes measures that facilitate the desired environmental outcomes to be achieved; ... (2) Measures facilitating the desired environmental outcomes to be achieved include the identification of relevant – (a) self-assessable development; and (b) assessable development requiring code or impact assessment. 24. Determining the level of assessment is something that falls within the purview of planning schemes as contemplated by s 2.1.3 of IPA. It does not fall within the scope of planning scheme policies which are intended to ‘support the local dimension of a planning scheme’ (s 2.1.16), not control development or use of premises.” [10] The opposed arguments to the effect that the Policy did not regulate development on or use of premises were similar, beginning with noting the Policy’s three roles as the register of heritage places, statement of criteria for inclusion in the register and description of the process for inclusion and removal. For the respondent Council, Mr Hinson SC submitted that: “5. The Policy says nothing about development or use of premises. It identifies cultural heritage or natural heritage values by reference to which a place may be included in or removed from the Register. The Policy attaches no consequence to inclusion of a place in the Register. The Register simply identifies places which have cultural or natural heritage significance. 6. City Plan 2000 defines “Heritage Place” as premises identified in the Heritage Register of the Policy. Such premises are ‘valuable features’ as defined by s 2.1.3A(4) of IPA, and are core matters to be dealt with by a planning scheme: see s 2.1.3. 7. Development on or the use of premises which are a Heritage Place as defined is regulated by the level of assessment -- 8 of 21 -- 9 tables in Chapter 3 and 4 of City Plan and by the Heritage Place Code in Chapter 5. Those provisions govern, control and direct development on or the use of premises: see Hope Island Resort Holdings Pty Ltd v Bridge Investment Holdings Pty Ltd (2004) 134 LGERA 398 at 404 [22].” At [22] the Chief Justice, having noted a statutory provision that “the approved scheme regulates the development and use of land within the site,” went on to say that “the word ‘regulates’ is used there in the sense of governs, controls, directs.” The Court of Appeal was not considering whether there was “regulation” by anything other than the scheme proper. [11] Mr Gibson QC for the appellants submitted in similar vein in his written outline: “12. First, it is a striking weakness of the applicant’s contention that the Policy itself nowhere refers to development on, or the use of, premises included in the Heritage Register; it does not purport to regulate development on or the use of, such premises, and nowhere does it state, or state to the effect that, development or use of such premises is impact assessable development or use. ... 14. Secondly, although development on, or the use of, premises included in the Heritage Register is regulated, that regulation is effected by City Plan, not by the Policy. Such regulation is effected by the Heritage Place Code. The Code comprises part of City Plan. The Code applies to premises that are a ‘heritage place’. The term ‘heritage place’ is defined by City Plan as follows: ‘A premises identified in the Heritage Register of the Heritage Register Planning Scheme Policy (Appendix 2)’. 15. Thirdly, IPA expressly authorises a local government’s planning scheme to apply, adopt or incorporate a planning scheme policy under s 23 of the Statutory Instruments Act 1992. City Plan does ‘apply’ or ‘adopt’ the provisions of the Policy, to the extent that the Code applies to premises which are identified by reference to the Policy. The role of the Policy is confined to the identification of premises to which the Code applies. The Code does not apply to those premises by force of the operation of the Policy: it is the Code itself that applies its provisions to the premises so identified. -- 9 of 21 -- 10 16. So the regulation of the development on, or the use of, premises listed in the Heritage Register under the Policy is effected by relevant provisions of City Plan – not the Policy – as City Plan is authorised to do by IPA s 2.1.18. The validity of that conclusion is not affected by the fact that the Heritage Code applies only to premises listed in the Heritage Register under the Policy. It is not to the point that development on, or the use of premises is relevantly unaffected unless those premises are included in the Heritage Register. The fact remains that the operative provisions – the provisions that effect that regulation – are contained in the Code, not the Policy. 17. Finally, the Explanatory Notes to IPA explain the role and function of s 2.1.23(4) in the following terms: ‘Subclause (4) makes it clear that a planning scheme policy can neither regulate nor prohibit the development or use of premises. Planning scheme policies are policies that support the local dimension of a planning scheme. It is not appropriate that they be a further regulatory instrument. This could potentially lead to conflict with the planning scheme.’ (emphasis added) 18. Clearly, the Policy is not a ‘further regulatory instrument’ as that expression appears in the Explanatory Notes. Nor is there any question of potential conflict between the provisions of the Policy and of City Plan. Quite the contrary.” [12] Indisputably, it is the case that the inclusion of a property by name in the Heritage Register (a function of the Policy) is what brings it within the operation of a particular system of regulation. But for being included in the Heritage Register as first published, or pursuant to some amendment, a property would be unaffected by the regulatory regime established by the Heritage Place Code. There is force in both sides of the argument. In the end, I think that s 2.1.18 tips the balance against the co-respondent’s contention. What has been done may be seen as an instance of permissible incorporation by reference as recognised by the High Court in another context in Dainford Ltd v Smith (1985) 155 CLR 342 at 348. In my opinion, it is a correct analysis to regard the planning scheme as the sole source of regulation. It applies, adopts or incorporates (in part) the Policy rather than the other way around. -- 10 of 21 -- 11 I reach this conclusion without any reliance on the practical advantages of flexibility offered by use of the Policy in this way. Recourse to the Schedule 3 process for adding to or removing from the register is far less complicated, time-consuming and costly than the Schedule 1 procedures mandated for making or amending planning schemes would be. I note the analogy Mr Hinson sought to draw based on a passage from Pearce and Geddes, Statutory Interpretation in Australia (5th ) 6.63: “Definitions not to be treated as substantive provisions [6.63] In Gibb v FCT (1966) 118 CLR 628 at 635 Barwick CJ, McTiernan and Taylor JJ said: The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way ... Consequently the effect of the Act and its operation in relation to dividends as defined by the Act must, we think, be found in the substantive provisions of the Act which deal with ‘dividends’. [13] Mr Gibson pointed out that the IPA recognises that planning scheme policies may affect the land in ways whereby a change to them may reduce the value of the owner’s interest so as to give rise to entitlement to compensation if other IPA requirements are satisfied. See s 5.4.1 and s 5.4.2(a) which the drafter plainly regarded as consistent with the prohibition of regulation by a planning scheme policy in the original section 2.1.23(4). [14] The oral hearing of the co-respondent’s applications for declaratory relief and consequential striking out of the appeals occupied most of a day. It ranged widely, offering plenty of opportunity for testing the opposed submissions from many standpoints. The central issue remained that identified in the written outlines provided. The matter probably boils down to one of impression. It seems -- 11 of 21 -- 12 appropriate to make some comments about Mr Lyons’ principal submissions and the responses attracted. [15] Much reliance was placed on Kartinyeri v The Commonwealth (1998) 195 CLR 337. At issue there was the validity under s 51(xxvi) of the Constitution of Commonwealth legislation described as the Bridge Act which precluded the relevant Minister’s taking action in relation to the Hindmarsh Island Bridge, which would have been available under the earlier Heritage Protection Act. Brennan CJ and McHugh J said at 352 ff: “The character of the Bridge Act 7. In order to determine the validity of the Bridge Act, it is necessary in the first place to determine “its operation and effect (that is, to decide what the Act actually does)”, as Latham CJ pointed out in Bank of NSW v The Commonwealth (the Bank Nationalisation case) (85). The operation and effect of a law define its constitutional character, as Kitto J explained in Fairfax v Federal Commissioner of Taxation (86): ‘Under [s 51] the question is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, “with respect to”, one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an inference so incidental as not in truth to affect its character? [emphasis added]. To ascertain the nature of the rights, duties, powers and privileges which an Act changes, regulates or abolishes, its application to the circumstances in which it operates must be examined (87) 8. The operation and effect of the Bridge Act can be ascertained only by reference to the Heritage Protection Act, the operation of which it is expressed to affect. The Bridge Act restricts the operation of Pt II of the Heritage Protection Act so that no step can be taken towards the making of a declaration that would prohibit or restrict the construction of a bridge in the Hindmarsh Island bridge area and no declaration to that effect can be made. The Bridge Act is an instance of what F A R Bennion(88) calls “indirect express amendment”. It effects a partial repeal of the Heritage Protection Act, albeit the text of the Heritage Protection Act is unchanged (89). As Windeyer J said in Mathieson v Burton (90): -- 12 of 21 -- 13 “An Act that excludes from the operation of a former Act some matter formerly within its purview thus repeals it pro tanto, that is to say ‘in part’” … In determining the constitutional validity of an Act that reduces the ambit of an earlier Act, it is immaterial that the text of the earlier Act remains unchanged. It is the operation and effect in substance of the impugned Act which are relevant to its validity, whether or not the text of the earlier Act is changed. __________________________ (85) (1948( 76 CLR 1 at 186. (86) (1965) 114 CLR 1 at 7. (87) The Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 152, 245; see also Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 216; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 314-315; De Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 368-369. (88) Statutory Interpretation, 3 rd ed (1997), p 214. (89) Goodwin v Phillips (1908) 7 CLR 1 at 7. (90) (1971) 124 CLR 1 at 10.” [16] Gaudron J said at 369: “The plaintiffs contend that, as the Bridge Act does not, in terms, purport to repeal or amend any existing Commonwealth law, its validity is to be determined on the basis that it stands separate and apart from any such law, including the Heritage Protection Act. ... It affects a Commonwealth law, namely, the Heritage Protection Act and it affects it by limiting its field of operation.” [17] Gummow and Hayne JJ at 375: “67 In ordinary usage (apart from any special statutory meaning) to amend a statute ‘is to alter its legal meaning’ (153), in particular its territorial, temporal or personal dimension (154). An amendment may take the form of, or include, a repeal. Thus, if a section is deleted it can be said that it has been repealed whilst the statute itself has been amended (155). Amendment may be effected by implication where, although the later statute contains no textual identification of the earlier law, ‘actual contrariety is clearly apparent’ (156).” 68 The earlier statute also will be amended by a law which does not identify the text it amends but produces the need to conflate the two texts to arrive at the combined legal meaning (157). _________________________ (153) Bennion, Statutory Interpretation, 3 rd ed (1997), p 210. (154) Bennion, Statutory Interpretation, 3rd ed (1997), p 130. (155) Bennion, Statutory Interpretation, 3 rd ed (1997), p 211. (156) Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 275; South Australia v Tanner (1989) 166 CLR 161 at 171. -- 13 of 21 -- 14 (157) Bennion, Statutory Interpretation, 3 rd ed (1997), p 214. See also Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 at 11-13.” [18] Neither Mr Gibson nor Mr Hinson sought to argue the present application as one which depended on form, as opposed to substance. The co-respondent’s argument, as noted, was that the Policy’s validity is to be assessed by reading it with the provisions of the planning scheme “whose operation it alters”. The point of reading the Acts together in Kartinyeri was to identify the Bridge Act as having the same character for constitutional purposes as the Act which (by cutting it down) was in substance being amended. It seems to me that the present exercise for this court is a rather different one, of giving appropriate effect to the prohibition in s 2.1.23(4) of the original IPA. The Constitution offers its own opportunities for considering prohibitions; Kartinyeri was not one. I do not accept that it follows from the ruling in Kartinyeri to the effect that the “cutting-down” Bridge Act was on the same footing as the Heritage Protection Act that the Policy which the planning scheme (an instrument which clearly “regulates”) picks up is also, in a relevant way, “regulating”. [19] Apropos the co-respondent’s contention that the Policy and any amendment to it to change the Heritage Register amended the planning scheme (or purported to) without the mandatory steps found in Schedule 1 of IPA, I accept Mr Hinson’s argument based on the High Court’s identification of “the central meaning of ‘amend’ [as] to alter the legal meaning of an Act or provision, short of entirely rescinding it” (Attorney-General (WA) v Marquet (2003) 78 ALJR 105, 113) that there is no change in the legal meaning of ‘heritage place’ or of the planning scheme flowing from entry of a place in the Register: -- 14 of 21 -- 15 “13. The field of operation of the relevant provisions of City Plan may change when a place is included in the Heritage Register and thus becomes a Heritage Place as defined. That factual change in circumstances is not an amendment of City Plan. That is confirmed by s 1(2), 9(2), 10(1)(a), 11(1), 12(1)(b), 13, 20(b) and 21(b) of Schedule 1 which suggest that an amendment of a planning scheme must be in documentary form containing textual amendments by way of alteration, variation, deletion or addition of text, maps, figures or plans. 14. Schedule 8 Part 1 Table 5 item 3 makes all aspects of development on a registered place as defined under the Queensland Heritage Act 1992 assessable development. When a place is included in the register under that Act, that provision of IPA becomes operative in relation to that place. Schedule 8 is not amended by the amendment of the register to include a place. Schedule 8 remains unamended, but its field of operation changes. That field of operation was and is variable because the fact upon which it operates, the fact of being a registered place, is a fact which may exist when Schedule 8 is enacted or may exist at a later time. 15. The position is the same in the present case. In both cases, an operative provision (Schedule 8 of IPA or the level of assessment table and Heritage Place Code) has a field of operation described by reference to a factual circumstance, the existence of which depends on some act being done dehors the operative provision. When that act is done, so as to bring the provision into operation, the provision is not amended. Its legal meaning remains unchanged.” [20] Before the Policy was amended to include the co-respondent’s property in the Heritage Register, there wereamendments to ch 2 Pt 1 div 5 of IPA. An additional requirement of a “planning scheme policy” under s 2.1.16 was that it “supports local government actions under this Act for IDAS and for making or amending its planning scheme”. The former s 2.1.16(2) (“planning scheme prevails”) became s 2.1.17A and a new subsection (2) was added to s 2.1.18: “A planning scheme policy must not apply, adopt or incorporate another document prepared by the local government.” More importantly, for present purposes, s 2.1.23(4) was completely recast: -- 15 of 21 -- 16 “(4) A planning scheme policy may only do 1 or more of the following – (a) state information a local government may request for a development application; (b) state the consultation the local government may carry out under section 3.2.5; (c) state actions a local government may take to support the process for making or amending its planning scheme. (d) contain standards identified in a code.” (There has subsequently been added “(e) include guidelines or advice about satisfying assessment criteria in the Planning Scheme.”) [21] The co-respondent contends, and correctly in my opinion, that nothing in the amended s 2.1.23(4) authorises the amendment made to the policy as of 1 January 2004 whereby her property was added to the register – or indeed the inclusion of any properties in the register earlier, then or later. [22] For the other parties, reliance is placed on the IPA provisions contemplating and implicitly authorising amendment of planning scheme policies (ss 2.1.19, 2.1.20 and 2.1.21(2) – s 5.4.1 might be recalled too) and s 23 of the Statutory Instruments Act 1992: “23 Statutory instrument may make provision by applying another document (1) If an Act or statutory instrument (the authorising law) authorises or requires the making of a statutory instrument with respect to a matter, a statutory instrument made under the authorising law may make provision for the matter by applying, adopting or incorporating (with or without modification) the provisions of – (a) an Act, statutory instrument or other law; or (b) another document (whether of the same or a different kind); as in force at a particular time or from time to time. (2) If a statutory instrument made after 1 January 1992 applies, adopts or incorporates the provisions of a document, the provisions applied, adopted or -- 16 of 21 -- 17 incorporated are the provisions as in force from time to time unless the statutory instrument expressly provides otherwise. (3) In this section – law includes a law of the Commonwealth, another State, a Territory or a foreign country.” Mr Gibson responded to Mr Lyons’ assertion that there has been an attempt to amend the planning scheme, which fails because the Schedule 1 procedures were not used, by noting that there has been no purporting to amend the planning scheme, but that the planning scheme, as a statutory instrument under s 23 applies or adopts (he says does not incorporate) the Policy as it stands “from time to time”, this being envisaged by s 23. [23] For the argument that the Policy is preserved, notwithstanding the changes to the IPA, and on a basis which permits its amendment, reliance is placed on s 6.2.2 of IPA: “6.2.2 Particular planning scheme policies still valid (1) This section applies to a planning scheme policy in force at the commencement of this section. (2) To the extent the policy was valid at the commencement, the policy is still valid despite sections 2.1.16 and 2.1.23.” This provision came in as part of the 2003 amendments. The co-respondent’s argument that the Policy was not valid at the commencement has failed. If it had succeeded, of course, s 6.2.2 would have nothing to save. [24] The next issue is whether the Policy is frozen forever, in its form as at the date of commencement (16 October 2003), in the sense that only that is preserved by s 6.2.2(2). Mr Lyons argued that such is the effect to be attributed to “transitional provisions” generally. What precedes s 6.2.2 in ch 6 Pt 2 of IPA characterises it as such a provision. However, the characterisation does not necessarily confine the -- 17 of 21 -- 18 effect it would otherwise have: cf Devine Limited v State of Queensland [2005] QPELR 326, 333-34. Mr Gibson submits that “in the absence of appropriate words of limitation in s 6.2.2, its preservation of the validity of the Policy does not carry with it an implied prohibition upon any further amendment of the Policy, provided any such amendment would itself have been valid if made prior to 16 October 2003.” He argues that, notwithstanding the change to s 3.2.23(4), the effect of s 6.2.2 is to preserve the ongoing operation of the Policy as it is amended from time to time. By its own terms, perhaps superfluously, the Policy envisages its own amendment as occasion arises by use of Schedule 3 procedures. Those are available in any event, under s 2.1.19. At p 87 of the transcript, Mr Lyons appeared to be critical of Mr Gibson’s reliance on s 23 of the Statutory Instruments Act, which as he said cannot affect the construction of terms in an Act, as opposed to a statutory instrument. The correct reference would be to s 14H(1)(a) and (2)(a) of the Acts Interpretation Act 1954, applicable to references in Acts only. The section makes similar provision, although their terms are different. [25] I accept the argument that the restrictions in the amended s 2.1.23(4) apply only to new planning scheme policies made after 16 October 2003 and do not limit the power of amendment in relation to older policies. By reference to s 854 of the Local Government Act 1993, Mr Hinson ascribes to the legislature a high degree of subtlety in respect of matters of this kind. Subsection (3) provided: “(3) If a provision of a local law or a subordinate law includes a process of the type mentioned in subsection (1)- (a) until a new planning scheme (other than a transitional planning scheme within the meaning of chapter 6 of that Act) has effect in the local government’s area, the provision may be amended or repealed; or (b) on or after a new planning scheme (other than a transitional planning scheme within the meaning of chapter 6 of that Act) has effect in the local -- 18 of 21 -- 19 government’s area, the provision may not be amended but may be repealed.” [26] There are some similar distinctions in IPA provisions referred to above. It would have been possible, if not easy, to constrain amendment of planning scheme policies had the legislature adverted to the issue and determined to do it. It must be conceded that there is a difficult grey area here. It would not be permissible to make some entirely new planning scheme policy under the guise of amending a pre-October 2003 one, in the way that listed limited companies have been reduced to a shell and then given new life in some entirely new area of commerce. Mr Lyons was correct in his observations about the difficulty of drawing the line, but I do not accept that as an argument against the particular amendment complained of here, which seems wholly unexceptional, something that might always have been predicted to happen. No doubt, in more borderline cases, as in Marquet, the courts look to substance rather than form. There would be no utility in attempting to formulate a test here. The Council accepted, I think correctly, that no amendment could be made to the Policy (or any pre October 2003 local planning policy) inconsistent with the prohibition in the original s 2.1.23(4). [27] Reliance was placed on Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 at 108-09 in respect of tests to be applied when a “contrary intention” is looked for for purposes of provisions such as s 14H of the Acts Interpretation Act and s 23(2) of the Statutory Instruments Act 1992. See also Repatriation Commission v Vietnam Veterans Association of Australia NSW Branch Inc [2000] 171 ALR 523, especially at 548, in respect of the importance of considering context in statutory interpretation in this country. In each of the Acts there is s 4, recognising that the statutory canons for construction yield to “contrary intention” appearing. -- 19 of 21 -- 20 [28] Mr Lyons arguments for a contrary intention (p 37) were: “First we submit the change in section 2.1.23 subsection (4) itself demonstrates a contrary intention. The change in that section was plainly intended to limit the range of matters which a planning scheme policy could deal with. It is highly unlikely that the Legislature would go to the trouble in 2004, six years after local governments have been operating under the Integrated Planning Act, to limit the scope of planning scheme policies, but also intend that local governments could thereafter continue to expand the scope of policies which would offend the amended section. We would submit that to hold otherwise would allow a very large exception to a clear statutory intent. Secondly, we refer to the wording of section 6.2.2. Subsection (1) says, “The commencement of this section.” It doesn’t say it applies to a policy made prior to the amendment, but to the policy as it was on a particular date, that is at the commencement of this section, and in subsection (2) it is that policy, that is the one that was in force at that date, which is valid. That view, in our submission, is supported by the opening words of subsection (2) because the operation of section 6.2.2 is limited to the extent the policy was valid at the commencement. One looks at the point in time. One sees the extent to which the policy was valid and it is only to that extent that the policy remains valid. It didn’t enable a council to go contrary to the statutory intent of 2.1.23 subsection (4) to make amendments outside that limited scope of those four matters. The third thing is the explanatory note to section 6.2.2. The last sentence in particular says: ‘This section will ensure that planning scheme policies made before the commencement of these amendments are still valid. Its operation is only in respect of policies made before the amendment, even though they may deal with matters not contemplated by the new provisions.’ It is clear that the purpose was the limited purpose of preserving policies to the extent they were validly made beforehand, not as they might be amended from time to time.” I detect no sufficient basis here for acknowledging an exception based on contrary intention. -- 20 of 21 -- 21 [29] In the appeal, the relief sought by the co-respondent in the preliminary issue is refused. -- 21 of 21 --