Council of the City of Shoalhaven v Elachi

Land and Environment Court (NSW)|2015-05-19|Before: Biscoe J

SOLICITORS: Carter and Ferguson (Applicant) Gadens (Respondent) File Number(s): 40382/15

Judgment

The applicant, the Council of the City of Shoalhaven, alleges that the respondent, Mr Charbel Elachi, has breached, and threatens to continue to breach, s 76A(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by clearing trees and other vegetation on his densely vegetated land at contiguous Lots 3, 4 and 13, Section 13 DP 9063, Griffin Street, Callala Beach (Property) without development consent, where prior development consent is required under cl 5.9(3) of the Shoalhaven Local Environmental Plan 2014 (LEP). Callala Beach is a small settlement in the bush at Jervis Bay. Council seeks a declaration of breach, a restraining injunction and an order to restore the Property to its pre-clearing state. If Council is successful in establishing unlawfulness and obtains a restraining injunction, the parties agree that the question of whether a restoration order should be made should be deferred and anticipate that they could probably agree on what has to be done without a further hearing.
The clearing is for the construction of a permanent fence around the boundary of the Property as well as around the boundary of each Lot. No development consent has been obtained for the clearing or the fence. The clearing so far carried out is shown on the survey plan annexed to this judgment. It shows clearing on the western, southern and part of the eastern boundaries of Lot 4 and the eastern, southern and part of the western boundaries of Lot 13. The proposed clearing has not been completed because it was the subject of an interlocutory injunction in these proceedings.

AGREED FACTS

The respondent is the owner of the Property comprising Lots 3, 4 and 13, Section 13 DP 9063, Griffin Street, Callala Beach.
Lots 3 and 4 front Griffin Street and have an approximate combined width of 40 metres.
Lot 13 is at the rear of Lot 4 and fronts an unmade Council road known as Marine Parade. Lot 4 and Lot 13 have an approximate combined length of 104-108 metres.

Relevant planning controls for the Property

The Property is land that is not excluded from the operation of the NV Act by s 5 of that Act.
The SEPP applies to the Property.
The LEP and the DCP apply to the Property.
The Property is zoned E3 Environmental Management under the LEP.
Clause 5.9 of the LEP is titled "Preservation of trees and vegetation". The LEP provides for a "Clauses Map".
The Property is identified as "CI 5.9" on the Clauses Map.
Chapter G4 of the DCP is titled "Removal and Amenity of Trees". Chapter G4 of the DCP refers to "an area mapped by this Chapter".
The Property is mapped for the purposes of Chapter G4 as "Original 'Paper Subdivision'. Deposited Plan" and "Endangered Ecological Community".

Clearing at the Property on 4 April 2015

On 4 April 2015 the respondent undertook clearing at the Property on Lots 4 and 13.
The clearing was clearing within the meaning of s 7 of the NV Act.
The clearing occurred along: 1. the western, southern and part of the eastern boundaries of Lot 4; 2. the eastern, southern and part of the western boundaries of Lot 13.
The clearing was undertaken by the respondent with the intention that a fence would be installed along or close to the boundaries of each of the Lots.
The clearing ceased on 4 April 2015, at the request of Council, before the clearing necessary to install a fence around the boundaries of each lot was complete.
The extent of clearing that was carried out is generally depicted on the survey plan annexed to this judgment.
No clearing at the Property has taken place since 4 April 2015.

Nature of the Clearing Works

No agricultural activity is being undertaken at the Property.
Development consent has not been sought or granted for the clearing, or the proposed fence.
Subject to the determination of these proceedings, the respondent proposes to complete the clearing around the perimeter of each of the Lots and install a fence.
The respondent proposes to construct the fence: 1. in accordance with the requirements of the SEPP; and 2. as a permanent boundary fence within the meaning of cl 29 of the NV Regulation.
Council does not consider the fence is capable of being exempt development because a permit or development consent is necessary within the meaning of cl 1.16(3)(b) of the SEPP.
Council accepts that if a permit or development consent for the clearing is not necessary: 1. that the clearing has been carried out to the minimum extent necessary for the erection of a permanent boundary fence within the meaning of s 22 of the NV Act; 2. that a fence erected on or inside the lot boundaries of the Property at a height no greater than 1.8 metres above existing ground level and of post and wire construction would otherwise meet the requirements of cl 2.35 of the SEPP.

Amendments to the DCP

Council is proposing to amend the DCP, including Chapter G4. These amendments are on public exhibition until 22 May 2015.
The nature of the amendments to Chapter G4 are set out in a "Table of Changes" on page 1 of the proposed new Chapter G4.

THE EPA ACT

An "environmental planning instrument" includes a state environmental planning policy or a local environmental plan but not a development control plan: s 4 EPA Act.
The EPA Act provides: 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: … (e) protecting or preserving trees or vegetation, … (4) An environmental planning instrument that makes provision for or with respect to protecting or preserving trees or other vegetation may make provision: (a) for development control plans to specify the species or kinds of trees or other vegetation included in or excluded from the relevant provisions, and (b) for the grant of permission to remove or otherwise affect trees or other vegetation, and for a refusal to grant permission to be treated as a refusal or failure to grant development consent under and for the purposes of Part 4. … 74C Preparation of development control plans (1) The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable: (e) to make provision for anything permitted by this Act to be prescribed by a development control plan. … (5) A provision of a development control plan (whenever made) has no effect to the extent that: (a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or (b) it is inconsistent or incompatible with a provision of any such instrument. 76 Development that does not need consent (1) General If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies. Note. Environmental assessment of the development may nevertheless be required under Part 5. … 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. …

The LEP

Clause 2.3 of the LEP provides that the Land Use Table in Part 2 specifies the types of development which require development consent. Clause 2.3 is subject to other provisions (cl 2.3(4)), relevantly, cll 5.9 and 5.9AA.
The LEP applies to the Property. Clause 5.9 provides: 5.9 Preservation of trees or vegetation (1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation. (2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council. Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner. (3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by: (a) development consent, or (b) a permit granted by the Council. (4) The refusal by the Council to grant a permit to a person who has duly applied for the grant of the permit is taken for the purposes of the Act to be a refusal by the Council to grant consent for the carrying out of the activity for which a permit was sought. (5) This clause does not apply to a tree or other vegetation that the Council is satisfied is dying or dead and is not required as the habitat of native fauna. (6) This clause does not apply to a tree or other vegetation that the Council is satisfied is a risk to human life or property. (7) A permit under this clause cannot allow any ringbarking, cutting down, topping, lopping, removal, injuring or destruction of a tree or other vegetation: (a) that is or forms part of a heritage item or that is within a heritage conservation area, or (b) that is or forms part of an Aboriginal object or that is within an Aboriginal place of heritage significance, unless the Council is satisfied that the proposed activity: (c) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area, and (d) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or heritage conservation area. Note. As a consequence of this subclause, the activities concerned will require development consent. The heritage provisions of clause 5.10 will be applicable to any such consent. (8) This clause does not apply to or in respect of: (a) the clearing of native vegetation: (i) that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003, or (ii) that is otherwise permitted under Division 2 or 3 of Part 3 of that Act, or … (9A) Subclause (8) (a) (ii) does not apply in relation to land identified as "Cl 5.9" on the Clauses Map. 5.9AA Trees or vegetation not prescribed by development control plan (1) This clause applies to any tree or other vegetation that is not of a species or kind prescribed for the purposes of clause 5.9 by a development control plan made by the Council. (2) The ringbarking, cutting down, topping, lopping, removal, injuring or destruction of any tree or other vegetation to which this clause applies is permitted without development consent.
By operation of cll 5.9(2) and 5.9AA(1) of the LEP, it is necessary to determine whether or not trees or other vegetation are prescribed by a development control plan for the purposes of cl 5.9(2).

THE DCP

Objective 5(ii) of the DCP is to "build upon" the LEP "by providing detailed objectives, and controls for development": DCP Chapter 1: Introduction.
For the purpose of cl 5.9 of the LEP, Council adopted Chapter G4 of the DCP entitled "Removal and Amenity of Trees", which provides: 1 Purpose The purpose of this Chapter is to nominate trees and other vegetation for the purpose of clause 5.9 of the Shoalhaven Local Environment Plan (SLEP) 2014... 2 Application This Chapter applies to all land within the Shoalhaven LGA. You should also refer to the Supporting Maps for further information. … 4 Objectives iii. Enable land owners to remove trees from their property that are a risk to buildings. iv. Control inappropriate ring-barking, cutting down, lopping, topping, removing, injuring, poisoning or wilful destruction trees. … viii. Facilitate the removal of undesirable exotics, noxious weeds, dangerous trees and any other inappropriate plantings, and to replace these with suitable local indigenous species which will positively contribute to visual and environmental amenity and ecological sustainability.
The Property is a "non-urban" area for the purposes of the DCP as it is zoned E3 Environmental Management under the LEP, and therefore cl 5.2.3 of the DCP applies. Clause 5 is headed "Controls" and includes: 5.1 Prescribed Trees or Vegetation for the Purpose of Clause 5.9 of the SLEP 2014 The following defines prescribed trees or vegetation which a person must not ringbark, cut down, top, lop remove, injure or wilfully destroy without the authority conferred by either a development consent or a Tree Removal Permit granted by Council. All species of trees or vegetation which occur: 1. In an area mapped by this Chapter; or 2. On publically owned land or; 3. In an urban area (residential, business, industrial, commercial, special use and RU5 Village zoned land) that meets the following criteria: ... 5.2 When is Approval Required? … 5.2.3 Non-urban Areas … Non-urban Area Exemptions The following tree removal/lopping activities do not require a DA from Council: … b) The clearing of native vegetation that is authorised by a development consent or property vegetation plan under the NV Act 2003 or that is otherwise permitted under the NV Act 2003 consistent with Australian Standard Protection of trees on development sites (AS 4970-2009) … (emphasis added)
Relevantly to cl 5.1.1, the Property is in an area mapped by this Chapter. By reference to the maps prepared for the purposes of the DCP, the Property is mapped as both "Original 'Paper Subdivision'. Deposited Plan" and "Endangered Ecological Community".
As a result, all species of trees and vegetation on the Property are prescribed for the purposes of cl 5.9 of the LEP: cl 5.9(2) of the LEP.
One of Council's proposed amendments to the DCP (see [31]-[32] above), is to remove from cl 5.2.3 Non-urban Area Exemptions (b) the words "or that is otherwise permitted under the NV Act 2003". Council's expressed reason is that the amendment will ensure consistency with cl 5.9 of the LEP.

THE SEPP

The SEPP provides for exempt development that does not require development consent: 1.15 What development is exempt development? (1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out. Note. Under section 76 of the Act, exempt development may be carried out without the need for development consent under Part 4 of the Act or for assessment under Part 5 of the Act. The section states that exempt development: (a) must be of minimal environmental impact, and (b) cannot be carried out in critical habitat of an endangered species, population or ecological community (identified under the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994), and (c) cannot be carried out in a wilderness area (identified under the Wilderness Act 1987). 1.16 General requirements for exempt development … (3) To be exempt development for the purposes of this Policy, the development must: … (b) not involve the removal or pruning of a tree or other vegetation that requires a permit or development consent for removal or pruning, unless that removal or pruning is undertaken in accordance with a permit or development consent. Note. A permit for the removal or pruning of a tree or other vegetation may be granted under a local environmental plan. A development consent for the removal of native vegetation may be granted under the Native Vegetation Act 2003. 2.35 Specified development The construction or installation of a fence on land within a rural zone, an environment protection zone…is development specified for this code…

the nv act

The objects of the NV Act are listed in s 3: (a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and (b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and (c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and (d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and (e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, in accordance with the principles of ecologically sustainable development.
Section 7 provides: 7 Meaning of clearing native vegetation For the purposes of this Act, clearing native vegetation means any one or more of the following: (a) cutting down, felling, thinning, logging or removing native vegetation, (b) killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation. Note. See Division 3 of Part 3 for the exclusion of routine agricultural management and other farming activities from constituting the clearing of native vegetation if the landholder can establish that any clearing was carried out for the purpose of those activities.
Division 2 of Part 3 is headed "Permitted Clearing". Section 18 within Division 2 provides: 18 Application (1) This Division sets out the clearing of native vegetation that is permitted to be carried out without the authority conferred by a development consent or property vegetation plan. (2) This Division does not permit clearing without an approval or other authority required by another Act or in contravention of another Act.
Division 3 of Part 3 is headed "Permitted Activities" and includes ss 21 and 22, which provide: 21 Application (1) This Division sets out the activities that do not constitute the clearing of native vegetation for the purposes of this Part and, accordingly, are permitted to be carried out without the authority conferred by a development consent or property vegetation plan. (2) This Division does not permit an activity without an approval or other authority required by another Act or in contravention of another Act. 22 Routine agriculture management activities (1) Clearing for routine agricultural management activities is permitted. (2) This section does not authorise any clearing of native vegetation: (a) if it exceeds the minimum extent necessary for carrying out the activity, or (b) if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure.
Section 11 defines routine agricultural management activities (RAMA): (1) For the purposes of this Act, routine agricultural management activities mean any of the following activities on land carried out by or on behalf of the landholder: (a) the construction, operation and maintenance of rural infrastructure: (i) including (subject to the regulations) dams, permanent fences, buildings, windmills, bores, air strips (in the Western Division), stockyards, and farm roads, but (ii) not including rural infrastructure in areas zoned as rural-residential under environmental planning instruments or on small holdings (as defined in the regulations), … (2) The regulations may make provision for or with respect to extending, limiting or varying the activities that are routine agricultural management activities, and subsection (1) is to be construed accordingly.

THE NV REGULATION

Clause 29 of the NV Regulation provides: 29 Permanent boundary fences The construction, operation and maintenance of any permanent boundary fence (other than a fence that is rural infrastructure) is a routine agricultural management activity, but only if the clearing is carried out within 6 metres on either side of the fence.
Thus, counter-intuitively, cl 29 (as authorised by s 11(2) of the NV Act) extends a routine "agricultural" management activity to the construction, operation and maintenance of any permanent boundary fence even if that fence is not for the purpose of agriculture.
Although s 11(1)(a) of the NV Act defines routine agricultural management activities to include the construction, operation and maintenance of rural infrastructure including "permanent fences" - which would include permanent boundary fences and permanent internal fences - cl 25 of the NV Regulation limits this to rural infrastructure used for the purposes of, or in connection with, an "agricultural activity". Therefore, since the Property is not used for or in connection with an agricultural activity (or any activity), s 11(1)(a) of the NV Act is irrelevant in the present case. Clause 25 of the NV Regulation provides: 25 Meaning of "rural infrastructure" (1) A building, structure or work on land is rural infrastructure for the purposes of section 11(1)(a) of the Act and this Part only if the building, structure or work is used for the purposes of, or in connection with, an agricultural activity or private native forestry that is being carried out on the land. (2) In this clause, agricultural activity has the same meaning as agriculture has in the Standard Instrument (Local Environmental Plans) Order 2006. However, an activity is taken to be agricultural activity for the purpose of this clause even if the activity is not undertaken for a commercial purpose.
Clauses 30 and 31 of the NV Regulation provide that the construction, operation and management of sheds, access trails and tracks in relation to a "landholding" are routine agricultural management activities. The definition of "landholding" in s 3 warrants consideration when considering whether "boundary" in cl 29 means the boundary of the Property or the boundary of the individual lots: landholding means: (a) a parcel of land, or (b) several parcels of land which: (i) are contiguous with one another or are separated from one another only by a road, river, creek or other watercourse, and (ii) constitute or are worked as a single property, irrespective of whether those parcels are held under the same title or different titles or titles of different kinds.

Consideration

The case turns on the construction and interrelationship of statutes and planning instruments. The task of construction must begin with a consideration of the text itself. No particular theory or rule of statutory interpretation including that of purposive construction, can obviate the need for close attention to the text and structure of the relevant provisions: Perilya Broken Hill Limited v Valuer-General (No 6) [2015] NSWLEC 43 at [16] (Biscoe J) and the cases there cited.
Section 76A(1) of the EPA Act requires that if the LEP specifies that the clearing may only be carried out with development consent, then consent must first be obtained and the development carried out in accordance with its terms.
Council's case is that development consent for the clearing of trees and vegetation on the Property is required under cl 5.9(3) of the LEP.
It is convenient to repeat part of cl 5.9 of the LEP: 5.9 Preservation of trees or vegetation (1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation. (2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council. Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner. (3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by: (a) development consent, or (b) a permit granted by the Council. (4) The refusal by the Council to grant a permit to a person who has duly applied for the grant of the permit is taken for the purposes of the Act to be a refusal by the Council to grant consent for the carrying out of the activity for which a permit was sought. … (8) This clause does not apply to or in respect of: (a) the clearing of native vegetation: (i) that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003, or (ii) that is otherwise permitted under Division 2 or 3 of Part 3 of that Act, or … (9A) Subclause (8) (a) (ii) does not apply in relation to land identified as "Cl 5.9" on the Clauses Map.
The respondent submits: 1. Clause 5.9 of the LEP leaves it to the DCP to determine whether development consent or a council permit is required for clearing of trees and vegetation on the Property. 2. Clause 5.2.3 Non-urban Area Exemptions of the DCP provides: Non-urban Area Exemptions The following tree removal/lopping activities do not require a DA from Council:… … (b) The clearing of native vegetation that is…permitted under the NV Act 2003... 1. Section 22(1) of the NV Act provides: Clearing for routine agricultural management activities is permitted. 1. Clause 29 of the NV Regulation provides: 29 Permanent boundary fences The construction, operation and maintenance of any permanent boundary fence (other than a fence that is rural infrastructure) is a routine agricultural management activity, but only if the clearing is carried out within 6 metres on either side of the fence. 1. The clearing in the present case is for the construction of a "permanent boundary fence". It is common ground that the clearing has been and is proposed to be within 6 metres on either side of the proposed fence, within the Property. 2. Section 22(2) of the NV Act "does not authorise any clearing of native vegetation… (b) if it is done for a...structure before the grant of any statutory approval or other authority required for the work, building or structure". The "structure" in this case is the proposed fence. However, no statutory approval or other authority is required for the fence because construction of the proposed fence on the Property (being within an environmental protection zone) is exempt development (not requiring development consent) under cl 2.35 of the SEPP, which provides: The construction or installation of a fence on land within …, an environment protection zone …is development specified for this code…
I do not accept the respondent's submission.
Clause 5.9 of the LEP applies to all the trees and vegetation on the Property. That is because, pursuant to cl 5.9(2) of the LEP, they are prescribed for the purposes of cl 5.9 of the LEP by cl 5.1.1 in Chapter G4 of the DCP, being in an area mapped by that Chapter.
If cl 5.9(8)(a)(ii) of the LEP applies in this case, clearing of native vegetation on the Property for the purpose of construction of a permanent boundary fence would be potentially permissible without development consent because clearing for that purpose is permissible under s 22 in Division 3 of Part 3 of the NV Act read with cl 29 of the NV Regulation. However, this permanent boundary fence exemption turned on by cl 5.9(8)(a)(ii) is deliberately turned off by cl 5.9(9A) in the case of land identified as "Cl 5.9" on the Clauses Map in the LEP, which includes the Property. Thus, the Property does not benefit from cl 5.9(8)(a)(ii).
Clause 5.9AA of the LEP permits clearing of trees and vegetation without development consent that are not of a species or kind prescribed for the purposes of cl 5.9(3). Clause 5.9AA is irrelevant in this case because all species of trees and vegetation on the Property have been prescribed for the purposes of cl 5.9 by the DCP.
Clause 5.9(3) prohibits the clearing of any trees or other vegetation to which the DCP applies on the Property without a development consent or Council permit. The respondent submits that the DCP does not apply to trees and other vegetation on the Property, and therefore cl 5.9(3) does not require development consent or a Council permit for clearing but leaves it to the DCP to prescribe whether or not development consent or a Council permit is required. Since cl 5.9(3) uses the word "applies" and not the word "prescribed", in contrast to cl 5.9(2), the respondent submits that the DCP's prescription for the purposes of cl 5.9 does not mean that the DCP "applies" under cl 5.9(3).
I disagree. In my opinion, the DCP "applies" to the clearing of trees and other vegetation on the Property within the meaning of cl 5.9(3). The words in cl 5.9(3) "to which any such development control plan applies" are wide and in my view include, but are not limited to, applies by reason of prescribing the trees and vegetation on the Property for the purposes of cl 5.9 of the LEP - as the DCP does. Further, in the terms of cl 5.9(2), the DCP prescription is for the purposes of cl 5.9. One of those purposes is cl 5.9(3). Finally, there is a tension, to say the least, between the respondent contending that the DCP does not apply and the respondent applying the non-urban areas exemption in the DCP cl 5.2.3 Non-urban Area Exemptions (b) ("clearing of native vegetation that is…permitted under the NV Act"). Consequently, cl 5.9(3) requires development consent or a Council permit for the clearing on the Property. As will be seen, this spells the end for the respondent's further submission that clearing without development consent is permitted under the DCP, to which I now turn.
Notwithstanding that the permanent boundary fence clearing exemption under s 22 of the NV Act read with cl 29 of the NV Regulation turned on by cl 5.9(8)(a)(ii) of the LEP is turned off in the case of certain mapped land including the Property by cl 5.9(9A) of the LEP, the respondent submits that it is turned on again by cl 5.2.3 of the DCP (although the respondent eschews the descriptions "turned off" and "turned on").
Assuming that the proposed permanent fence is a "boundary" fence (which I consider below), the respondent's DCP submission set out above is dependent upon the proposition that construction of the proposed fence is exempt development under cl 2.35 of the SEPP. I disagree. The "general requirements" for exempt development in cl 1.16 of the SEPP must be satisfied. One of those general requirements is that the development must not involve the removal of a tree or other vegetation that requires a permit or development consent for the removal, unless that removal is undertaken in accordance with a development consent: cl 1.16(3)(b) of the SEPP. This requirement is not satisfied because, as I have previously concluded, the removal of the trees and vegetation on the Property requires development consent under cl 5.9(3) of the LEP. Thus, cl 5.9(3) of the LEP is the stumbling block for the respondent's case. In the result, both the clearing and the proposed fence require development consent.
If I am in error, then in my opinion, cl 5.2.3 Non-urban Area Exemptions (b) of the DCP is inconsistent or incompatible with cl 5.9 of the LEP, at least to the extent that it relates to trees and other vegetation on the mapped land referred to in cl 5.9(9A) of the LEP, which includes the Property. In my view, cl 5.9 is relevantly an exhaustive provision. Clause 5.9(3) of the LEP requires development consent for the clearing of trees or other vegetation on prescribed land including the Property. Clause 5.9(8)(a)(ii) turns on the permanent boundary fence clearing exemption under the NV Act. However, cl 5.9(9A) of the LEP deliberately turns off that exemption in relation only to the mapped land to which it refers, which includes the Property. Yet cl 5.2.3 Non-urban Area Exemptions (b) of the DCP turns that exemption back on again in relation to cl 5.9(9A) mapped land, including the Property. In my opinion, a development control plan which turns on an exemption that the local environmental plan has deliberately turned off is, to that extent, clearly inconsistent or incompatible with the local environment plan. Consequently, cl 5.2.3 Non-urban Area Exemptions (b) of the DCP has no effect to the extent that it is referable to land referred to in cl 5.9(9A) of the LEP, which includes the Property: s 74C(5)(b) EPA Act; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459 at [93]-[99] (Biscoe J). Section 74C(5)(b) provides: 74C Preparation of development control plans (5) A provision of a development control plan (whenever made) has no effect to the extent that: … (b) it is inconsistent or incompatible with a provision of any such instrument.
If I am still in error, such that the clearing is exempt development under the permanent boundary fence clearing exemption, the remaining question is whether the word "boundary" in the expression "permanent boundary fence" in cl 29 of the NV Regulation means the boundary around each Lot or the boundary around the whole Property. The respondent contends for the former, Council for the latter. On the respondent's construction, most of the Property would be cleared given that the Lots are only some 20 metres wide and clearing could be carried out to a distance of 12 metres from each boundary fence, within the Property. On the respondent's construction, he could clear about 70% of Lot 3, 70% of Lot 4 and a little less of Lot 13 because it is larger. This issue of construction is therefore of high significance for the Property.
There is no definition in the NV Act or the NV Regulation of "permanent boundary fence" or "boundary".
The Macquarie Dictionary definition defines "boundary" as: noun (plural boundaries) 1. something that indicates bounds or limits; a limiting or bounding line. 2. Agriculture a fence which serves to indicate the limits of a property. … 5. denoting a boundary.
The Australian Oxford Dictionary defines "boundary" as: 1. A line marking the limits of an area, territory etc.
The New Shorter Oxford English Dictionary defines "boundary as: 1 A thing which serves to mark the limits of something; the limit itself, a dividing line.
The Macquarie Dictionary has been described by the Court of Appeal as the most authoritative Australian dictionary: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [33].
I do not find the dictionary definitions helpful in this case because they do not address whether the "property" "area", "territory" or something to which they refer is the aggregate of adjoining lots with separate titles under common ownership or each individual lot.
The objects of the NV Act are not directed towards wholesale clearing but towards protection and management of native vegetation in accordance with the principles of the ecologically sustainable development, towards maintaining native vegetation rather than clearing it, unless clearing is exempted. They tend to suggest that in construing an exemption, a narrower construction is preferable to a wider construction where the two constructions are otherwise equally available and the text and context of the legislation do not assist in deciding between the two. If that were the situation, it would tend to favour the view that "boundary" in cl 29 of the NV Regulation as meaning the boundary of the Property not the boundary of the individual Lots.
However, there is significant contextual indication to the contrary in cll 30 and 31 of the NV Regulation. They extend routine agricultural management activities to sheds, access trails and tracks in relation to a "landholding". It is convenient to repeat the definition of "landholding" in cl 3: landholding means: (a) a parcel of land, or (b) several parcels of land which: (i) are contiguous with one another or are separated from one another only by a road, river, creek or other watercourse, and (ii) constitute or are worked as a single property, irrespective of whether those parcels are held under the same title or different titles or titles of different kinds.
The Property is a "landholding" within this definition. The fact that cl 29 of the NV Regulation does not refer to a "landholding" and cll 30 and 31 do, suggests that cl 29 is not concerned with a landholding where several parcels of land are contiguous with one another and constitute a single property - as is the case with the Property. I conclude that that is the preferable construction of cl 29. Accordingly, in my opinion, "boundary" in cl 29 of the NV Regulation means the boundary of the individual Lots, not the boundary of the Property.

ORDERS

The orders of the Court are as follows: 1. Declaration that the respondent has breached, and has threatened to continue to breach, s 76A(1) of the Environmental Planning and Assessment Act 1979 (the Act) by carrying out development on the Property, being clearing of trees and other vegetation, contrary to cl 5.9 of the Shoalhaven Local Environmental Plan 2014 (LEP), without development consent, in circumstances where prior consent is and was required. 2. Order that the respondent, his servants, agents and invitees, be restrained from clearing trees or other vegetation on any part of the Property otherwise than with prior development consent under the Act, if such consent is required by cl 5.9 of the LEP. 3. If the applicant presses for a rectification order, then within 10 days the parties are to (a) submit a proposed consent rectification order to the Court with a request that it be made by consent, or (b) arrange for the matter to be listed as soon as possible for directions in relation to the rectification order issue. 4. The respondent is to pay the applicant's costs. 5. The exhibit may be returned.

Annexure, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2015

At a glance

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Judgment (16 paragraphs)

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Cases Cited (3)

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