A development consent was ‘subject to’ the other provisions of the legislation12. Pain J (at [44-45]) accepted this meant that consent provisions were subservient to the rest of the Act13. As there was no inconsistency, ‘subject to’ had no work to do.
Another recent case considers a water access licence ‘subject to’ certain irrigation requirements14. Robson J (at ) held that the phrase meant ‘akin to “in addition to”’ – that is, the licence was conditional on actual performance of the additional requirements’15. These 2 cases show how the same phrase in different situations can take subtly different meanings. iTip – context and purpose hold the keys to meaning.
This principle is from Episode 59 of interpretation NOW!
12 s 4.4 of the Environmental Planning and Assessment Act 1979 (NSW).
13 Medical  NSWCA 282 (at ), Pearce 9th ed (at [4.53]).
14 2 weeks later in the same court – Harris (No 3)  NSWLEC 18.