Creighton v Sutherland Shire Council

CITATION : Creighton v Sutherland Shire Council [2001] NSWLEC 190 APPLICANT: David Bruce Creighton PARTIES : RESPONDENT: Sutherland Shire Council FILE NUMBER(S) : 11220 of 2000 CORAM: Lloyd J KEY ISSUES: Words and Phrases :- "mean high water mark" LEGISLATION CITED: Interpretation Act 1987 s 33 Sutherland Shire Local Environmental Plan 1993 cl 14A CASES CITED: Cooper Brooks (Wollongong) Pty Ltd v The Federal Commissioner of Taxation (1981) 147 CLR 297 DATES OF HEARING: 15/05/2001 EX TEMPORE JUDGMENT DATE : 05/15/2001

HIS HONOUR:

The applicant has appealed against the deemed refusal of a development application for a dwelling house on land known as Lot B in Deposited Plan 419163 also known as No. 41 Juvenis Avenue, Oyster Bay. That land has a frontage to the mean high water mark of the Georges River. A preliminary question of law has been referred to me concerning the application and interpretation of cl 14A of Sutherland Shire Local Environmental Plan 1993 ("the LEP").
Clause 14A of the LEP provides as follows: 1) The objectives of the clause are: a) preservation and enhancement of the natural features and vegetation of the area where the land meets the water; b) restoration of the land below the foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures; c) no development below the foreshore building line other than development excepted by this clause; d) a significant reduction in the number of structures below the foreshore building line, particularly on redevelopment; e) conservation and enhancement of waterfront development of heritage value; and f) avoidance of pollution of, or adverse ecological effects on, the waterways. 2) In this clause, "foreshore building line" means the line shown on the maps by a broken black line on an allotment of land, which is parallel to (and at the distance specified on the maps from) the mean high water mark of tidal water as shown on the Deposited Plan for the allotments at 24 April 1980, regardless of the reclamation, other works or changes occurring since that date. If that definition results in a foreshore building line which is at a distance of less than 7.5 metres from the landward boundary of a waterfront reserve on the present mean high water mark of tidal water, or no such line is shown on the maps, the foreshore building line is taken to be a line parallel to and 7.5 metres from the landward boundary of the reserve or (if there is no such reserve) the present mean high water mark. 3) A person must not erect a building or carry out a work on land between a foreshore building line and the tidal water in respect of which the line is fixed. 4) However, subclause 3) does not apply to: a) single storey boat sheds; b) boat launching and shipping facilities; c) below ground swimming pools; d) works, including mechanical works, to enable pedestrian access; e) landscaping and barbecues; f) jetties; and g) swimming enclosures. 5) The council must not consent to development on an allotment of land having a foreshore building line, unless it is satisfied that the following buildings or works (if any) will be removed before, or within a reasonable time after, the development is carried out: a) any building or work on the allotment between the line and the present mean high water mark, not being a building or work specifies in subclause 4); or b) any building or work below the present mean high water mark, being a building or work on the allotment or on land adjacent to the allotment which is in the same ownership as the allotment or to which the owner or occupier of the allotment has some form of occupancy rights. 6) However, subclause 5) does not apply to a building or work if the council is satisfied that requiring removal of the building or work: a) would be inconsistent with any of the objectives of this clause; b) is not necessary to achieve the objectives of this clause; c) is unreasonable or unnecessary in the circumstances of the case having regard to the provisions of any relevant development control plan. 7) This clause does not apply to buildings or works on reclaimed land, or on land adjacent to reclaimed land in Sylvania Waters. 8) To avoid doubt, State Environmental Planning Policy No. 1 - Development Standards applies to a foreshore building line in the same way as it applies to a development standard.
The question of law as framed by the respondent, the council, is as follows: Whether a proper interpretation, for development control purposes, of the Sutherland Local Environmental Plan 1993, Clause 14A(2), definition of "foreshore building line" requires that the foreshore building line measured from the mean high water mark of tidal water (MHWM) as shown on the deposited plan for any relevant allotments as at 24 April 1980, or from the MHWM on the deposited plan for the individual allotment, the subject of the particular development application?
The applicant contends that the correct interpretation of cl 14A is that the foreshore building line is as follows: a line connecting points measured twenty metres from the mean high water mark on deposited plan 419613, those points being measured along lines drawn parallel to the boundaries of the allotments in the deposited plan so as to replicate the shape of the mean high water mark on the allotment.
Lot B in Deposited Plan 419613 is, as I have said, an allotment that has a frontage to the mean high water mark of the Georges River. Deposited Plan 419613 contains only two allotments, namely the subject lot and another allotment which does not have a frontage to the Georges River but a frontage to Juvenis Avenue.
According to the council's submissions, that which is sought to be achieved by the foreshore building line is a parallel line which is plotted by a series of points by measuring a specified distance from the mean high water mark at ninety degrees. This may require the starting point for the measurement as plotted on the subject allotment to be a point at the mean high water mark on the adjoining allotment.
The applicant correctly points out that due to the scale at which the scheme map is drawn, that is, the map to which the LEP applies, the precise position of the line cannot be gauged as a matter of great accuracy, which explains the necessity for the definition to provide a precise location by reference to the deposited plan.
The applicant relies, in particular, on the use of the words "an allotment of land" and "the Deposited Plan" in the definition of foreshore building line to support the submission that no part of the mean high water mark lying outside the allotments in the deposited plan may be taken into account.
If one measures the foreshore building line having regard to the mean high water mark lying outside the deposited plan in this case, then one arrives at a different line when it is applied to the subject lot. That is to say, if one applies a foreshore building line for the adjoining lot to the east by reference to the mean high water mark on that allotment, then one has a line which does not coincide with the line which results from applying the definition solely to the mean high water mark on the subject lot.
The modern approach to statutory interpretation is a purposive approach. Section 33 of the Interpretation Act 1987 requires a construction that would promote the purpose or object underlying the Act or statutory rule whether or not that purpose or object is expressly stated, and such a construction shall be preferred to a construction that would not promote that purpose or object.
The underlying purpose or object of the provision of a foreshore building line is the creation of a line on a map beyond which a person must not erect a building or carry out a work: see sub-cl (3) of cl 14A.
There are numerous cases which show that it is an approach of courts to the interpretation of legislation to take into account the consequences of giving a particular meaning to an Act: see in particular Cooper Brooks (Wollongong) Pty Ltd v The Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321. It is also a settled principle of statutory interpretation that where two meanings are open, it is proper to adopt that meaning which will avoid consequences which appear irrational or absurd.
In my opinion it would be irrational or absurd to have two foreshore building lines which do not intersect. This opinion is confirmed by reference to the definition of "foreshore building line" which refers to a line in the singular, not a number of lines.
The definition of "foreshore building line" also uses the word "parallel to" the mean high water mark. I refer to the dictionary meaning of the word "parallel", and in particular to the Macquarie Dictionary, which defines to the word "parallel" as meaning "(of a single line, plane, etc) equidistant from another or others at all corresponding points". In my opinion, one cannot have two lines which are said to be parallel to and at the same distance from the mean high water mark which do not intersect. That would also be an irrational or absurd consequence.
The respondent, as I have said, relies upon the use of the singular "the Deposited Plan" in the definition. The definition goes on, however, to say "the Deposited Plan for the allotments" (plural). There may of course be more than one deposited plan of the allotments having frontage to the mean high water mark.
All these considerations lead me to the conclusion that the council's preferred construction is the correct one. That is to say, the foreshore building line is the line measured from the mean high water mark as shown on the deposited plan for any relevant allotment having frontage to the mean high water mark. I hereby certify that the preceding 16 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd

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