Ocean Shores Community Association Inc v Byron Shire Council (No 3) [2015] NSWLEC 171 (30 October 2015)

Last Updated: 2 November 2015

Land and Environment Court New South Wales

Case Name:	Ocean Shores Community Association Inc v Byron Shire Council (No 3)
Medium Neutral Citation:	[2015] NSWLEC 171
Hearing Date(s):	20 October 2015
Date of Orders:	30 October 2015
Decision Date:	30 October 2015
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) Amended summons dated 20 October 2015 dismissed (2) Injunction restraining the sale of the land made on 9 October 2015 dissolved (3) Costs reserved (4) Exhibits may be returned
Catchwords:	JUDICIAL REVIEW – Minister’s delegate had valid delegation to issue gateway determination approving amendment of local environmental plan to reclassify land from community to operational – gateway determination not invalid because of mistake of jurisdictional fact – gateway determination under Environmental Planning and Assessment Act 1979 not made in breach of s 30 of Local Government Act 1993
Legislation Cited:	Administrative Arrangements (Administrative Changes–Ministers and Public Service Agencies) Order 2014 cll 3, 4, 7, 19(2) Byron Local Environmental Plan 1988 Byron Local Environmental Plan 2014 (Amendment No 2) Constitution Act 1902 (NSW) s 50E Environmental Planning and Assessment Act 1979 (NSW) ss 5, 23, 24, 26(1)(h), 53, 54, 55, 56, 59, 118 Environmental Planning and Assessment Amendment Act 2014 (NSW) Government Sector Employment Act 2013 (NSW) s 73, Sch 1 Interpretation Act 1987 (NSW) ss 5(2), 8, 49 Local Government Act 1993 (NSW) ss 25-34, 45, Ch 6 Pt 2 Div 1 Public Sector Employment and Management Act 2002 (NSW) Sch 1 Div 2
Cases Cited:	Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 Bungendore Residents Group Inc v Palerang Council (No 3) [2007] NSWLEC 251 Ocean Shores Community Association Inc v Byron Shire Council (No 2) [2015] NSWLEC 162 State of New South Wales v Law (1992) 29 ALD 215 Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170; (2014) 86 NSWLR 674 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 Young v Tockassie [1905] HCA 17; (1905) 2 CLR 470
Texts Cited:	D Pearce and S Argument, Delegated Legislation in Australia (4th ed 2012, Lexis Nexis Butterworths)
Category:	Principal judgment
Parties:	Ocean Shores Community Association Inc (Applicant) Byron Shire Council (First Respondent) Minister for Planning (Second Respondent)
Representation:	COUNSEL: Ms I J King and Mr G Fredericks (Applicant) Mr A Galasso SC and Mr S Fitzpatrick (First Respondent) Ms K Richardson (Second Respondent) SOLICITORS: Woolf Associates (Applicant) Marsdens Law Group (First Respondent) Minister for Planning (Second Respondent)
File Number(s):	40906 of 2015

JUDGMENT

Judicial review challenge to issuing of Gateway Determination

1. In these judicial review proceedings the Applicant Ocean Shores Community Association Inc seeks a declaration of invalidity of the Byron Local Environmental Plan 2014 (Amendment No 2) (LEP Amendment). At issue is the reclassification of land at Lot 530 DP 238451 (the land) in Ocean Shores owned by the First Respondent Byron Shire Council (the Council) from community to operational land. The Council wishes to sell that land, a plan of subdivision has been registered and the Council has entered into contracts for sale with numerous purchasers. I continued an injunction restraining the sale of that land in Ocean Shores Community Association Inc v Byron Shire Council (No 2) [2015] NSWLEC 162 delivered on 14 October 2015 and expedited the substantive hearing which I listed before me on 20 October 2015.
2. The Council submitted a planning proposal to the Second Respondent Minister of Planning (the Minister) to reclassify the land from community to operational by amendment of the Byron Local Environmental Plan 1988 as provided for in s 30 of the Local Government Act 1993 (NSW) (LG Act). As part of the amendment process a gateway determination under s 56(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) was issued on 7 November 2014 (the Gateway Determination) by Mr Ray the Acting Deputy Secretary Planning Services as delegate of the Minister. At that time the land was already classified as operational land with a possibility that it was subject to a public trust, which the Council wished to remove if it did exist as provided for in s 30 of the LG Act. The Council passed a resolution classifying the land as community land in June 2015 before the LEP Amendment came into effect in July 2015.
3. The original summons dated 9 October 2015 in cl 9 challenged the exercise of delegation of the power under s 56(2) of the EPA Act by the Minister’s delegate in the making of the Gateway Determination. Leave was granted to the Applicant to rely on an amended summons dated 20 October 2015 at the expedited hearing. New challenges to the Gateway Determination were added in cl 9A in the Applicant’s amended summons. Clauses 9 and 9A of the amended summons state:

9. The Byron Local Government Plan 2014 (Amendment No 2) is invalid because the Gateway Determination purportedly made on 7 November 2014 was not made by a validly appointed delegate of the Minister.
9A Alternatively, the Byron Local Government Plan 2014 (Amendment No 2) is invalid because the Gateway Determination purportedly made on 7 November 2014:

(a) proceeds on a mistaken factual basis as to the current classification of Lot 530 DP 238451 Orana Park Road, Ocean Shores; or
(b) was not made for the purposes of the Environmental Planning and Assessment Act 1979; or
(c) was not authorised by section 30 of the Local Government Act 1993.

Evidence

4. The Applicant tendered a combined bundle of documents (Exhibit C). The bundle included the Department of Planning and Environment (the Department) official notice dated 11 November 2011 delegating the Minister’s functions under s 23 of the EPA Act to a deputy director-general for the purpose of making particular local environmental plans. The Instrument of Delegation dated 18 October 2013 and gazetted 6 December 2013 delegated certain ministerial functions under the EPA Act to departmental officers holding positions described in the table to the instrument.
5. The bundle also included the Council’s planning proposal entitled “Reclassification of land to operational – interests changed” dated 23 May 2014 which relevantly stated (bold in original):

INTRODUCTION
The intended outcome of the instrument proposed by this Planning Proposal is that the public Land owned by the Council known as Lot 530 DP 2384514 Orana Road, Ocean Shores (the “Land”):
(a) is classified as "operational" in accordance with Part 2 of Chapter 6 of the Local Government Act 1993 ("LG Act"); and
(b) ceases to be a public reserve (if it is a public reserve); and
(c) is discharged from any trusts, estates, interests, dedications, conditions, restrictions and covenants affecting the Land or any part of the Land, except for:

(i) any reservations that except land out of a Crown grant relating to the Land, and
(ii) reservations of minerals (within the meaning of the Crown Lands Act 1989).

...
The Land is presently within Zone No 2 (a) - (Residential Zone) under the provisions of Byron Local Environmental Plan 1988. Development consent to subdivide the Land into 11 residential lots was granted on 8 April 2003 and the subdivision is presently being carried out. The Council has resolved to sell the lots by way of public auction in order to fund future infrastructure projects in Ocean Shores and other part of the Byron Local Government Area.
...
Whilst the Council does not admit or concede that the Land is subject to a trust for a public purpose it proposes, for abundant caution, to utilise the power set out in section 30 of the LG Act to make provision in a local environmental plan to the effect that, on commencement of the plan, the Land, if it is a public reserve, ceases to be a public reserve, and that the Land is by operation of the plan discharged from any trusts, estates, interests, dedications, conditions, restrictions or covenants affecting the Land or any part of the Land, except for:
(a) any reservations that except land out of a Crown grant relating to the Land, and
(b) reservations of minerals (within the meaning of the Crown Lands Act 1989).
It appears that the power in section 30 of the LG Act is only available where a local government plan reclassifies “community” land as “operational” land. Given that the Land is presently classified as “operational” it would be necessary for the Council to give public notice under section 34 of the LG Act of a proposed resolution to reclassify the Land as “community” land and then to resolve pursuant to section 33 of the LG Act that the Land be reclassified as “community” land before the instrument intended by this Planning Proposal is then made to reclassify the Land from "community" land to "operational" land.

6. The planning proposal summary in the Gateway Determination report prepared for the Minister’s delegate by officers in the Department and signed by Mr Ray on 7 November 2014 stated:

[R]eclassify the site to operational land to enable the discharge of any interests which may apply to the land.
As the land is already classified as operational land, it may be required that Council undertakes reclassification in two stages - firstly from Operational (no interests changed) to Community, and secondly from Community to Operational – interests changed). This application relates to the second stage of the process, reclassifying from Community to Operational – interests changed.

7. The Gateway Determination dated 7 November 2014 signed by Mr Ray Acting Deputy Secretary begins in the following terms:

I, the Deputy Secretary, Planning Services at the Department of Planning and Environment as delegate of the Minister for Planning, have determined under s 56(2) of the Environmental Planning and Assessment Act 1979 (the Act) that an amendment to the Byron Local Environmental Plan 2014 to reclassify Lot 530 DP 238451 Orana Road, Oceans Shores from community land to operational land and to discharge any interests in the land should proceed...

8. The Minister read the affidavit of Ms Smith departmental legal manager affirmed 20 October 2015. Ms Smith commenced work at the Department in 2004. She gave evidence concerning the organisational changes in the Department and the positions held by Mr Ray. The change in description of the role of Director-General to Secretary was effected in April 2014. The new position title of Deputy Secretary was adopted in June 2014 with further organisational changes made in July 2014. Organisational changes concerning the Deputy Secretary positions and the Executive Director role took effect from 22 September 2014.
9. Ms Smith arranged for a review of the human resources file relating to Mr Ray. From 2 April 2013 Mr Ray held the position of Executive Director, Planning Reform and General Counsel. Mr Ray was appointed to the Executive Director’s role for a five year term. On 22 September 2014 he was appointed to temporarily perform the duties of Deputy Secretary and appointed to that position on 6 February 2015. Ms Smith annexed copies of letters of appointment obtained from the Department’s human resources file. Ms Smith was informed and believed to be true that no document or other communication to Mr Ray between 22 September 2014 and 6 February 2015 referred to his position of Executive Director or stated words to the effect that he no longer holds the position of, or has been relieved of the position of, Executive Director.

Chronology

10. The parties agreed on the following chronology of events as relevant to their respective cases:

Date	Event
2 April 2013	Mr Ray appointed as an “Executive Director”
18 Oct 2013	Instrument of Delegation Refers to “Director-General”, “Deputy Directors-General” and “Executive Directors”
6 December 2013	Purported delegation gazetted (New South Wales Government Gazette No 168, 6 December 2013)
21 February 2014	Letter from Woolf Associates to Council requesting Council cease arrangements for the sale of the land due to public trust
24 February 2014	Public Sector Employment and Management Act 2002 (PSEM Act) repealed. Immediately prior to the repeal of the PSEM Act: The “Division Head” of Planning and Infrastructure was listed as the “Director-General of the Department” in Div 2 of Sch 1
24 February 2014	Government Sector Employment Act 2013 (NSW) (GSE Act) commenced. Head of a Department is now the “Secretary”
23 April 2014	Administrative Arrangements (Administrative Changes–Ministers and Public Service Agencies) Order 2014 (Administrative Order) made, which listed the Department of Planning and Environment as a Department (cl 4(2)); and abolished the role of Director-General of Planning and Infrastructure (cl 19(2))
On or about 23 May 2014	Council submitted planning proposal to Minister to reclassify the land as operational land.
22 Sept 2014	Mr Ray begins temporarily performing the duties of Deputy Secretary.
7 November 2014	Mr Ray signed Gateway Determination under s 56 (see Item 1 of Instrument of Delegation)
19 November 2014	Environmental Planning and Assessment Amendment Act 2014 No 79 (NSW) (EPA Amendment Act) commences
29 January 2015 – 4 March 2015	Exhibition of planning proposal together with Gateway Determination
6 February 2015	Mr Ray is appointed as a Deputy Secretary
21 May 2015	Council agenda for ordinary meeting (Exhibit 3) resolution to proceed with LEP Amendment
11 June 2015	Council resolved that the land be reclassified from “operational” to “community” land
10 July 2015	LEP Amendment purportedly made
10 September 2015	Council enters into contracts for sale of the land conditioned on the plan of subdivision being registered
17 September 2015	Plan of subdivision of the land registered with NSW Land and Property Information Office
9 October 2015	Judicial review proceedings commenced Ex parte injunction made
12 October 2015	Injunction continued
20 October 2015	Completion date for contracts for the sale of the land

Local Government Act 1993

11. The LG Act relevantly provides:

Chapter 6 What are the service functions of councils?
Part 2 Public land
Division 1 Classification and reclassification of public land
25 All public land must be classified
All public land must be classified in accordance with this Part.
26 What are the classifications?
There are 2 classifications for public land—“community” and “operational”.
27 How are the classifications made?
(1) The classification or reclassification of public land may be made by a local environmental plan.
(2) The classification or reclassification of public land may also be made by a resolution of the council under section 31, 32 or 33.
28 Forwarding of planning proposals to Minister for Planning
(1) A council may not forward a planning proposal to the Minister for Planning under section 56 of the Environmental Planning and Assessment Act 1979 which includes a proposal to classify or reclassify public land that is not owned by the council unless the council has obtained the consent of the owner to the proposed classification or reclassification of public land.
(2) A local environmental plan that classifies or reclassifies public land may apply to one or more areas of public land.
29 Public hearing into reclassification
(1) A council must arrange a public hearing under section 57 of the Environmental Planning and Assessment Act 1979 in respect of a planning proposal under Part 3 of that Act to reclassify community land as operational land, unless a public hearing has already been held in respect of the same matter as a result of a determination under section 56 (2) (e) of that Act.
(2) A council must, before making any resolution under section 32, arrange a public hearing in respect of any proposal to reclassify land as operational land by such a resolution.
30 Reclassification of community land as operational
(1) A local environmental plan that reclassifies community land as operational land may make provision to the effect that, on commencement of the plan, the land, if it is a public reserve, ceases to be a public reserve, and that the land is by operation of the plan discharged from any trusts, estates, interests, dedications, conditions, restrictions and covenants affecting the land or any part of the land, except for:

(a) any reservations that except land out of a Crown grant relating to the land, and
(b) reservations of minerals (within the meaning of the Crown Lands Act 1989).

(2) A provision referred to in subsection (1) has effect according to its tenor, but only if the Governor has, before the making of the local environmental plan, approved of the provision.
...
33 Reclassification of operational land as community land
(1) A council may resolve that public land classified as operational land is to be reclassified as community land.
(2) (Repealed)
34 Public notice to be given of classification or reclassification by council resolution
(1) A council must give public notice of a proposed resolution to classify or reclassify public land.
(2) The public notice must include the terms of the proposed resolution and a description of the public land concerned.
(3) The public notice must specify a period of not less than 28 days during which submissions may be made to the council.
(4) (Repealed)
...
Division 2 Use and management of community land
...
45 What dealings can a council have in community land?
(1) A council has no power to sell, exchange or otherwise dispose of community land.
(2) A council may grant a lease or licence of community land, but only in accordance with this Division.
(3) A council may grant any other estate in community land to the extent permitted by this Division or under the provisions of another Act.
(4) This section does not prevent a council from selling, exchanging or otherwise disposing of community land for the purpose of enabling that land to become, or be added to, a Crown reserve or to become, or be added to, land that is reserved or dedicated under the National Parks and Wildlife Act 1974.

12. Sections 31 (classification of land acquired after 1 July 1993) and 32 (reclassification of land dedicated under s 94 of the EPA Act) do not apply and have not been set out above. The only means of reclassification of the land is as provided in s 30.

Environmental Planning and Assessment Act 1979

13. The EPA Act relevantly provides:

Part 1 Preliminary
5 Objects
The objects of this Act are:
(a) to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,
(ii) the promotion and co-ordination of the orderly and economic use and development of land,
(iii) the protection, provision and co-ordination of communication and utility services,
(iv) the provision of land for public purposes,
(v) the provision and co-ordination of community services and facilities, and
(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and
(vii) ecologically sustainable development, and
(viii) the provision and maintenance of affordable housing, and

(b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and
(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.
Part 2 Administration
...
Division 6 Delegation
23 Delegation
(1) The Minister, corporation or Secretary may, by instrument in writing, under seal (in the case of the corporation), delegate any of the Minister’s, the corporation’s or the Secretary’s functions conferred or imposed by or under this or any other Act as are specified in the instrument to:

(a) any employee of the Department,

...
and may, by such an instrument, revoke wholly or in part any such delegation.
...
(2) A function, the exercise of which has been delegated under this section, may, while the delegation remains unrevoked, be exercised from time to time in accordance with the terms of the delegation.
(3) A delegation under this section may be made subject to such conditions or limitations as to the exercise of any of the functions delegated, or as to time or circumstance, as may be specified in the instrument of delegation.
(4) Notwithstanding any delegation under this section, the Minister, corporation, Secretary, Commission or panel, as the case may be, may continue to exercise all or any of the functions delegated.
(5) Any act or thing done or suffered by a delegate while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done or suffered by the Minister, corporation, Secretary, Commission or panel, as the case may be, and shall be deemed to have been done or suffered by the Minister, corporation, Secretary, Commission or panel, as the case may be.
...
Part 3 Environmental planning instruments
Division 1 General
24 Making of environmental planning instruments
(1) Without affecting the generality of any other provisions of this Act, an environmental planning instrument may be made in accordance with this Part for the purposes of achieving any of the objects of this Act.
(2) Environmental planning instruments may be made:

(a) by the Governor under Division 2 (called a State environmental planning policy or SEPP), or
(b) by the Minister (or delegate) under Division 4 (called a local environmental plan or LEP).

...
26 Contents of environmental planning instruments
(1) Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following:

...
(h) such other matters as are authorised or required to be included in the environmental planning instrument by this or any other Act.

...
Division 4 LEPs
53 Minister may make environmental planning instruments for local areas (LEPs)
(1) The Minister may make environmental planning instruments for the purpose of environmental planning:

(a) in each local government area, and
(b) in such other areas of the State (including the coastal waters of the State) as the Minister determines.

(2) Any such instrument may be called a local environmental plan (or LEP).
54 Relevant planning authority
(1) For the purposes of this Part, the relevant planning authority in respect of a proposed instrument is as follows:

(a) the council for the local government area to which the proposed instrument is to apply, subject to paragraph (b),
(b) the Secretary or any other person or body prescribed by the regulations if the Minister so directs under subsection (2).
...

55 Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal
(1) Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).
(2) The planning proposal is to include the following:

(a) a statement of the objectives or intended outcomes of the proposed instrument,
(b) an explanation of the provisions that are to be included in the proposed instrument,
(c) the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117),
(d) if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument,
(e) details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.

(3) The Secretary may issue requirements with respect to the preparation of a planning proposal.
56 Gateway Determination
(1) After preparing a planning proposal, the relevant planning authority may forward it to the Minister.
(2) After a review of the planning proposal, the Minister is to determine the following:

(a) whether the matter should proceed (with or without variation),
(b) whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal),
(c) community consultation required before consideration is given to the making of the proposed instrument (the community consultation requirements),
(d) any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument,
(e) whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body,
(f) the times within which the various stages of the procedure for the making of the proposed instrument are to be completed.

...
59 Making of local environmental plan by Minister
(1) The Secretary is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority. The Secretary is to consult the relevant planning authority, in accordance with the regulations, on the terms of any such draft instrument.
(2) The Minister may, following completion of community consultation:

(a) make a local environmental plan (with or without variation of the proposals submitted by the relevant planning authority) in the terms the Minister considers appropriate, or

...
Part 6 Implementation and enforcement
...
Division 1AA Planning administrators and panels
118 Appointment of planning administrator, planning assessment panel or regional panel
...
(3) A planning assessment panel or regional panel may be appointed to exercise only all or any particular function or class of functions of the council:

(a) as a consent authority, or
(b) in relation to making of environmental planning instruments under Part 3, or under Division 1 of Part 2 of Chapter 6 of the Local Government Act 1993, or
(c) in relation to the preparation, making and approval of development control plans, or
(d) in relation to the preparation and approval of contributions plans.

14. Part 3 Div 1 of the LG Act as referred to in s 118(3)(b) of the EPA Act includes s 30.

No valid delegation to issue Gateway Determination ground of review (clause 9)

15. The challenge to the delegation in cl 9 is entirely separate to the ground in cl 9(A). The relevant instrument of delegation and legislation referred to by the parties is set out below.

Constitution Act 1902

16. The Constitution Act 1902 (NSW) relevantly provides:

Part 7Administrative arrangements
50E Change to references in Acts etc to Ministers, Public Service agencies and Public Service employees
(1) The Governor may, by an administrative arrangements order, require a reference in any Act or statutory or other instrument, or in any contract or agreement, to a Minister, Public Service agency or Public Service employee by a specified description to be construed as a reference to a Minister, Public Service agency or Public Service employee, respectively, by another specified description.
...

Interpretation Act 1987

17. The Interpretation Act 1987 (NSW) relevantly provides:

Part 2 Words and expressions
8 Gender and number
In any Act or instrument:
...
(b) a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form,
...
Part 7 Exercise of statutory functions
49 Delegation of functions
(1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned.
(2) A delegation:

(a) may be general or limited,
(b) shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose, and
(c) may be revoked, wholly or partly, by the delegator.

...
(5) A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate.
(6) A delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator.
...
(8) If a function is delegated by or to a particular officer or the holder of a particular office:

(a) the delegation does not cease to have effect merely because the person who was the particular officer or the holder of the particular office when the function was delegated ceases to be that officer or the holder of that office, and
(b) the person for the time being occupying or acting in the office concerned is taken to be the delegator or delegate (as the case requires).

...

Government Sector Employment Act 2013

18. The GSE Act relevantly provides:

Part 5 Government sector employees
73 Appointment to position in government sector not affected by additional appointment
(1) The doctrine of incompatibility of office:

(a) does not operate to prevent the holder of a position in any government sector agency (the original position) from being appointed to another position in that or any other government sector agency (the additional position), and
(b) does not operate to effect or require the holder of the original position to surrender or vacate that position as a result of the appointment to the additional position.

(2) This section:

(a) applies even if the original position or the additional position is held on an acting or temporary basis, and
(b) extends to an appointment made before the commencement of this section (and applies to such an appointment as if this section had been in force when the appointment was made).

Administrative Arrangements (Administrative Changes–Ministers and Public Service Agencies) Order 2014

19. The Administrative Order relevantly provides:

3 Definitions
In this Order:
document means any Act or statutory or other instrument, or any contract or agreement.
GSE Act means the Government Sector Employment Act 2013.
...
4 Amendment of Schedule 1 to GSE Act (Public Service agencies)
...
7 Change of name of Planning and Infrastructure
(1) The name of Planning and Infrastructure is changed to the Department of Planning and Environment.
(2) In any document:

(a) a reference to Planning and Infrastructure is to be construed as a reference to the Department of Planning and Environment, and
(b) a reference to the Director-General of Planning and Infrastructure is to be construed as a reference to the Secretary of the Department of Planning and Environment.

...

Instrument of Delegation dated 18 October 2013

20. The Instrument of Delegation relevantly provides:

I, Bradley Hazzard, Minister for Planning and Infrastructure, under section 23 of the Environmental Planning and Assessment Act 1979 ... hereby delegate my functions referred to, and subject to the limitations set out, in the Table to this instrument of Delegation to the officers of the Department of Planning and Infrastructure holding the positions described in the Table to this Instrument of Delegation.
This delegation is in addition to, and is not intended to revoke or affect, the delegation of my functions by any current Instrument of Delegation

ITEM	Functions under the Environmental Planning and Assessment act 1979 (Planning Act)	Delegate
1	Making a determination, under section 56(2) of the Planning Act	• Director-General • Deputy Directors-General • Executive Directors • General Managers • Director Metropolitan Delivery

Applicant’s submissions

21. The power to make a gateway determination is reposed in the Minister personally in s 56(2) of the EPA Act. The making of a valid gateway determination is an essential pre-condition to any making or amendment of a local environmental plan (LEP).
22. The Gateway Determination that led to the making of the LEP Amendment was signed by Mr Ray on 7 November 2014 as “Acting Deputy Secretary Planning Services”. Pursuant to the Instrument of Delegation dated 18 October 2013 and gazetted 6 December 2013, there is no authority delegated to a Deputy Secretary to make a determination under s 56(2) of the EPA Act.
23. Clause 7(2)(b) of the Administrative Order does not refer to Deputy Secretary and cannot extend the delegation relied upon. It does not effect any change to the Instrument of Delegation. Section 50E(1) of the Constitution Act and the Administrative Order have not been judicially considered. The Applicant relied on State of New South Wales v Law (1992) 29 ALD 215 Kirby P at 215-216 to emphasise that such instruments should not be read with too much latitude, contrary to the Minister’s submissions.
24. On the face of s 50E of the Constitution Act it permits references to a specified public service employee to be changed to another specified public service employee but does not operate to effect changes to classes or categories of public service employees. Accordingly, the Administrative Order could not be effective to implement a change by reference to a class of employees as, being delegated legislation, the Administrative Order cannot go beyond the power provided in the empowering Act, see Young v Tockassie [1905] HCA 17; (1905) 2 CLR 470. It must be interpreted in a manner that brings it within that power, see discussion in D Pearce and S Argument, Delegated Legislation in Australia (4th ed 2012, Lexis Nexis Butterworths) at [30.5]. The Applicant understands that the Respondents rely on s 8(b) of the Interpretation Act. As was noted by Basten JA in Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170; (2014) 86 NSWLR 674 at [41] the use of s 8(b) applies only to the extent that the contrary intention does not appear from the specific legislation being construed, s 5(2) of the Interpretation Act. The inclusion of “specific description” in s 50E(1) of the Constitution Act shows a clear intention that positions referred to are singular not plural.
25. Further, the Administrative Order on its own terms does not operate to require a reference to Deputy Director-General to be construed a reference to Deputy Secretary. Clause 7(2)(b) refers specifically to the position of “Director General” and how references to that position are to be construed. The Administrative Order does not mandate a “find and replace” exercise whereby any position containing the words “Director-General” is now to be regarded as containing the word “Secretary” in place of those words. This can be contrasted with cl 4(3) of the Administrative Order where such a “find and replace” exercise is mandated.
26. Responding to the Minister’s submission that Mr Ray held a valid delegation as Executive Director when he issued the Gateway Determination, the Applicant submitted that the evidence of Ms Smith did not satisfy the necessary onus of proof that Mr Ray continued in the position of Executive Director at the same time as temporarily holding the position of Deputy Secretary in November 2014.

Minister’s submissions

27. On 2 April 2013, Mr Ray, the delegate who made the Gateway Determination, was appointed to the office of “Executive Director”. There is no doubt that an Executive Director has the authority under the Instrument of Delegation to make a Gateway Determination under s 56(2) of the EPA Act. The role of “Executive Director” continued to exist after the commencement of the Administrative Order (that is, the title of that position did not change).
28. On and from 22 September 2014, Mr Ray was temporarily performing the duties of “Deputy Secretary, Planning Services”. Mr Ray did not cease to be the holder of the office of “Executive Director” during the time that he was temporarily performing the duties “Deputy Secretary, Planning Services”. This contract of employment as Executive Director was for five years from 2 April 2013. Ms Smith’s affidavit identifies that during the period between 22 September 2015 and 6 February 2015 (when Mr Ray was appointed to the actual position of “Deputy Secretary”), Mr Ray did not cease to hold the office of “Executive Director”.
29. Finally, the fact that Mr Ray described himself in the Gateway Determination as a “Deputy Secretary” does not detract from the fact that he had the power to make the Gateway Determination as an “Executive Director”. Expressed another way, if Mr Ray made a wrong assumption as to the source of the power he exercised (which is denied), it does not affect the valid exercise of power if it is properly sourced in another part of the Instrument of Delegation, see generally Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 at [34] per French CJ, Hayne, Kiefel and Bell JJ.
30. In the alternative Mr Ray did hold a valid delegation as Deputy Secretary by virtue of the operation of s 50E of the Constitution Act, the Administrative Order and the GSE Act which replaced the PSEM Act.
31. Section 50E(1) of the Constitution Act provides for the making of orders such as the Administrative Order. From 23 April 2014, the effect of cl 7(2)(b) of that Administrative Order was that all references in the EPA Act to the Director-General were required to be construed as a reference to the “Secretary”. Further “Document” in the Administrative Order is defined in cl 3 as “any Act or statutory or other instrument, or any contract or agreement”.

Delegate held valid delegation when Gateway Determination issued

32. As provided for by s 49(1)(2)(5) and (6) of the Interpretation Act, where delegation of a power is permitted by an Act (here s 23 of the EPA Act) that power can be delegated to a holder of a particular office by reference to the title of the office concerned. The Instrument of Delegation dated 18 October 2013 delegates the making of a determination under s 56(2) of the EPA Act to “Deputy Directors-General” and “Executive Directors” inter alia. The Applicant bears the onus of proof of establishing that Mr Ray was not properly authorised to sign the Gateway Determination. For the reasons given by the Minister set out above in pars 27-31, Mr Ray held a proper delegation as Executive Director at the time of making the Gateway Determination on 7 November 2014.
33. The evidence of Ms Smith of the contents of the Department’s human resources file confirms Mr Ray’s appointment to the position Executive Director for five years from April 2013 and establishes by strong inference that Mr Ray continued as Executive Director while acting temporarily as Deputy Secretary at the time of issuing the Gateway Determination. Section 73 of the GSE Act provides that the appointment to a position in the government sector is not affected by an additional appointment. Under subsection (2)(a) this circumstance applies if the additional position (here Deputy Secretary) is held on an acting basis. While the Applicant submitted that the Minister had failed to establish that Mr Ray was an Executive Director at the relevant time through the evidence of Ms Smith I have found otherwise. Further, the onus of proof showing he was not properly occupying the position of Executive Director falls on the Applicant which brings forward no evidence to rebut the Minister’s evidence on this issue.
34. Strictly speaking, given s 73 of the GSE Act, the Minister does not need to rely on the High Court authority of Australian Education Union which held that provided a valid delegation is held at the relevant time a mistaken identification of power does not invalidate an administrative decision. If Mr Ray was found not to be properly authorised to act as a delegate while occupying the position of Deputy Secretary temporarily he was properly authorised as Executive Director under the Instrument of Delegation.
35. It is strictly unnecessary to consider whether Mr Ray also held a valid delegation as Acting Deputy Secretary, the position under which he signed the document headed Gateway Determination and understandably the principal focus of the Applicant’s challenge. I will consider the issues raised by the parties briefly. Ms Smith’s affidavit evidence is that the temporary position held by Mr Ray was as a deputy. A deputy deputises for another position. In this case a Deputy Director-General was a deputy to the Director-General and a Deputy Secretary is a deputy to the Secretary, as identified by Ms Smith in her affidavit at pars 3 and 5.
36. The Applicant states that it is not challenging the validity of the Administrative Order but argues that it should be construed in a certain way in light of s 50E of the Constitution Act. The Applicant’s submission that s 50E should not be read as enabling changes to classes or categories of public service employees but only to individual positions does not arise as an obvious construction from the face of the section. Such a narrow construction is inherently unlikely to be correct given the purpose of the section is to facilitate the making of administrative orders to give effect to changes in the machinery of government. I also do not agree with the Applicant’s submission that the inclusion of the words “specified description” in s 50E evince an intention by the drafter to exclude the effect of s 8(b) of the Interpretation Act. Singular can be read as plural and vice versa as provided by that section in the Interpretation Act. Section 50E should not be read as narrowing the effect of the Administrative Order.
37. According to the Minister and I accept the Administrative Order made by the Governor on 23 April 2014 provided:
    • (a) the Department of Planning and Environment was listed as a New South Wales Government Department (cl 4(2)) (and Sch 1 to the GSE Act was thereby amended);
    • (b) Planning and Infrastructure was removed as an Executive Agency related to a department in Sch 1 of the GSE Act (cl 4(6)) (and Sch 1 to the GSE Act was thereby amended);
    • (c) the name of Planning and Infrastructure was changed to the “Department of Planning and Environment” (cl 7(1));
    • (d) provision was made for references in documents to be construed to reflect the changes; namely:
      • (i) in any “document” a reference to Planning and Infrastructure is to be construed as a reference to the Department of Planning and Environment (cl 7(2)(a));
      • (ii) in any “document” a reference to the Director-General of Planning and Infrastructure is to be construed as a reference to the Secretary of the Department of Planning and Environment (cl 7(2)(b));
      • (iii) the office of Director-General of Planning and Infrastructure was abolished (cl 19(2)).
38. I agree with the Minister that cl 7(2)(b) of the Administrative Order intends that wherever the words “Director-General” appear those are replaced by “Secretary”, including in the Instrument of Delegation dated 18 October 2013 reference to “Deputy Directors-General”.
39. As the Minister submitted, from the commencement of the Administrative Order on 23 April 2014 the position of Director-General did not exist and no-one could be a deputy to that position. The position for which there could be a deputy was “Secretary” at the relevant time. Mr Ray was acting in the position of Deputy Secretary in November 2014 when he signed the Gateway Determination. By virtue of s 49(8)(b) of the Interpretation Act, Mr Ray acting as Deputy Secretary is taken to be the delegate of the functions delegated to that office.
40. For completeness, I note that the Environmental Planning and Assessment Amendment Act 2014 (NSW) made the changes effected by the Administrative Order in the EPA Act. It is unnecessary to refer to that amending Act further.
41. The Applicant has not established this ground of appeal.

Invalidity ground of review (clause 9A) not established

42. The Applicant additionally submitted that the Gateway Determination was invalid under the EPA Act and the LG Act on three bases so that the LEP Amendment was invalid. Relevant provisions of the EPA Act and the LG Act are set out earlier in the judgment. As subcll 9A(a) and (c) in the amended summons are closely related and concern the operation of s 30 of the LG Act I will consider them together.

LEP Amendment not contrary to objects in s 5 of EPA Act (cl 9A(b))

43. The Applicant relied on the wording of s 24 of the EPA Act that the power to make an environmental planning instrument is conferred for the purpose of achieving any of the objects of the EPA Act. The purpose of the LEP Amendment being the discharge of public trusts was not a purpose of the EPA Act as identified in the objects in s 5. The discharge of public trusts does not appear in the objects in s 5.
44. This is a particularly weak argument of the Applicant and can be dismissed entirely for the reasons given by the Respondents. Section 30 of the LG Act expressly provides through the making of an LEP for reclassification of land from community to operational, that such land ceases to be a public reserve and for the discharge of any trusts over the land. An amendment of a LEP pursuant to s 30 of the LG Act can only be achieved under the processes specified in Pt 3 Div 4 of the EPA Act. Section 26(1)(h) of the EPA Act recognises the operation of provisions such as s 30 of the LG Act as it specifies that environmental planning instruments can make provision for such other matters authorised or required by any other Act. Further confirmation of this approach can be found in s 118(3)(b) of the EPA Act which expressly recognises that a planning panel may be appointed to exercise particular functions including the making of environmental planning instruments as required under Ch 6 Pt 2 Div 1 of the LG Act, which includes s 30.
45. Further, the objects in s 5 are broadly phrased and must be so construed. Objective (a)(i) refers to the proper management and development of cities and towns for the social and economic welfare of the community, objective (a)(ii) refers to the promotion and co-ordination of the orderly and economic use and development of land, inter alia. Broad objects provisions are not generally construed to limit specific machinery provisions in an Act, contrary to what the Applicant contends. It makes no sense to construe the objects of the EPA Act in the manner contended for by the Applicant given the interrelated nature of and the specific provisions of the LG Act and the EPA Act in relation to reclassification of land.
46. The stated purpose of the LEP Amendment as set out in the planning proposal extracted above in par 5 was directed to more than the dissolution of public trusts. It included that the land cease to be public reserve and the reclassification of the land to operational. That is precisely what is provided for under s 30 of the LG Act. The Council identified in its planning proposal that the land was zoned for residential use, was subdivided in 2003 and was to be sold to fund future infrastructure projects, as identified in the extract set out in par 5 above. These matters are within the scope of the Council’s functions under the EPA Act and the LG Act, which are cognate legislation, as the Council submitted and the Applicant accepted. The Applicant has not established this appeal ground.

Mistaken factual basis not established/LEP Amendment authorised under s 30 of LG Act (subcll 9A(a) and (c))

47. At the time of the Gateway Determination on 7 November 2014 the land was categorised as operational. The land was not classified as community until 11 June 2015. The LEP Amendment which operated on the basis that the land was classified as community so that it could be reclassified to operational was made later on 10 July 2015.
48. The Applicant submitted that as at the time the Gateway Determination was made in November 2014 the land was operational, the determination was made on a mistaken factual basis and was therefore invalid. The Applicant focussed on the wording which appeared in the document headed Gateway Determination partially extracted above at par 7.
49. The Applicant submitted that the condition precedent inherent in s 30 of the LG Act, that the land is classified as community land prior to being reclassified as operational land must be satisfied at the time of issuing the Gateway Determination. This was submitted to be a jurisdictional fact, relying on Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 per Spigelman CJ at [5]-[6] and my decision in Bungendore Residents Group Inc v Palerang Council (No 3) [2007] NSWLEC 251 at [47]- [48]. The delegate was submitted to be mistaken as to the factual precondition which would give rise to the power to exercise the delegation. Section 30 does not confer power to reclassify operational land as community, only to reclassify community land as operational. The Council could only forward the planning proposal to the Minister under s 30 if the land was classified as community land at that time. This could only occur after the Council had passed a resolution to reclassify the land from operational to community.
50. For the reasons given by the Respondents this ground must also fail. Unlike the requirements for a planning proposal which must comply with s 55(2) of the EPA Act no particular form is required for a gateway determination under s 56. Indeed the term “gateway determination” while in the heading for the section is not used within it. Important context for understanding the Gateway Determination is provided by the planning proposal prepared as required by s 55(2) and partially extracted above at par 5. That is relevant to the decision of the Minister under s 56(2) which refers to reviewing a planning proposal. The planning proposal identified the factual position in relation to the land.
51. The planning proposal forwarded to the Department by the Council squarely identified the purpose of the LEP Amendment. The need for a two-step process is identified in the planning proposal. This process was also identified in the Gateway Determination report signed by Mr Ray, as set out above at par 6. The inference from this written material is that Mr Ray was well aware of the purpose of the LEP Amendment and the circumstances which pertained at the time of issuing the Gateway Determination.
52. Section 30(1) of the LG Act states that an LEP that reclassifies community land as operational land may provide that on commencement of the plan the land ceases to be a public reserve and is discharged from any trusts inter alia. Subsection (2) refers to obtaining the approval of the Minister before the making of a LEP. As the Respondents submitted there is no basis for construing the words “on commencement of the plan” as a statutory requirement that the land must be community land at the time the planning proposal was submitted and the Gateway Determination made. The relevant time that the land must be classified as community land is when the LEP Amendment commenced.
53. There is no statutory construction basis for analysing s 56(2) of the EPA Act informed by s 30 of the LG Act as if a jurisdictional fact arises. It is difficult to see how the principles considered in Pallas Newco and Bungendore apply in light of these provisions. I do not consider the Applicant gets to first base on this argument and do not therefore intend to undertake the extensive statutory analysis which is usually necessary to determine if a particular provision contains a jurisdictional fact, as demonstrated by the reasoning in Pallas Newco and Bungendore. The Applicant has failed to establish these grounds of appeal also.
54. As the Applicant has failed to establish the grounds of appeal the amended summons should be dismissed. I consider the injunctive order restraining the sale of the land made on 9 October 2015 and continued on 12 October 2015 should be dissolved.

Orders

55. The orders of the Court are:
    • (1) Amended summons dated 20 October 2015 is dismissed
    • (2) Injunction restraining the sale of the land made on 9 October 2015 dissolved
    • (3) Costs reserved
    • (4) Exhibits may be returned.

**********