Imbree v Sutherland Shire Council

Mr C McEwen SC Mr M Staunton Barrister (Respondent) HWL Ebsworth (Respondent) File Number(s): 12/10376

EX TEMPORE Judgment 1SENIOR COMMISSIONER: Sutherland Shire Local Environmental Plan 2006 contains a provision establishing and setting out the effect of a foreshore building line. These provisions are contained in cl 17 of the plan. It contains a number of elements that are called into being by other documents and sets out the consequences that flow from consideration of those other documents. 2The first of those is contained in cl 17(3) which defines the meaning of a foreshore building line generally. The provision says: In this plan foreshore building line in relation to land other than land referred to in subcl (4) or (5)" I note parenthetically that neither of those apply. (a) If a foreshore building line is shown on the map in relation to the land in the case of land that has a deemed high water mark a line across the land that is parallel to and the distance specified on the map from that deemed high water mark. 3The definition then continues in a fashion that is not relevant for these proceedings. 4It is appropriate to note, however, that, for the purposes of these proceedings, there is a map in relation to the land that has been tendered and forms exhibit 15 - the first part relevantly. That is an extract from the zoning plan that forms part of the Sutherland Shire Local Environmental Plan 2006. It shows the site, at 28 Rutherford Avenue at Burraneer Point, as being within zone 1 (not relevant for my present consideration); having a line shown to be a foreshore building line; and, again relevantly, defining the setback of that from what is described as a deemed high water mark of 20 m from that deemed high water mark. 5As a consequence, depending on the location of that deemed high water mark, there is invoked a prohibition contained in cl 17(7) which reads: A building must not be erected and a work must not be carried out on land between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed. 6Subclause (8) contains exceptions to that provision that are not relevant. 7Subclause (9) permits a new dwelling, a new dwelling being contemplated by the present proceedings, on the land between a foreshore building line and any waterway or reserve provided the consent authority is satisfied that the new dwelling or addition will not be erected any further forward of the foreshore building line than any existing dwelling on the land. 8This application proposes sequentially subdivision and the erection of a dwelling. As a consequence, the land for the purposes of subcl (9) simply comprises the proposed allotment upon which it is proposed to erect a dwelling. It is not the totality of the present parcel upon which there is an existing dwelling. As a consequence of that, the exception in subcl (9) is not engaged in these proceedings. 9Subclause (6) of cl 17 (for the purposes of the provisions to which I have referred in subcl (3)) describes what is to be the deemed high water mark. The provision reads: Deemed mean high water mark in relation to land means the mean high water mark or high water mark as shown on any plan relating to that land that was registered with the Registrar General on or before 24 April 1980 being a plan that was current at that date. 10There then follows a note - which by virtue of an earlier provision in the Local Environmental Plan is for purely explanatory purposes and does not do any work in the interpretation of or application of the plan's terms. 11It therefore follows, given that in this instance there is a dispute as to what should constitute the deemed mean high water mark for 28 Rutherford Avenue (and as a consequence therefrom what should be the foreshore building line for that allotment), that it is necessary for me, in the context of a variety of plans that are in evidence, to analyse what is the meaning of various of the elements contained in the definition of deemed high water mark. In that regard I am obliged to have consideration, as the High Court informs me in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355, to the whole of the relevant language in the document. 12First, in the judgment of the plurality at para 69, I am instructed by their Honours that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. 13In para 70 their Honours said: "A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions the conflict must be alleviated so far as possible by adjusting the language of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the Court to determine which is the leading provision and which the subordinate provision and which must give way to the other." 14Further, in para 71 their Honours say, "Furthermore, a court construing a statutory provision must strive to give meaning to every word in the provision." 15A similar sentiment was expressed by the Chief Justice in a concurring judgment. 16It therefore follows that I need to deal with the various elements that are contained in the definition of a deemed high water mark in the context of the High Court's instructions to me in Project Blue Sky. For that, it seems to me, there are a number of matters that I need to deal with, the first of them being what is the concept, what is meant by the words "a plan". 17First, I observe that, in the Real Property Act 1900, a plan of survey is defined by taking the meaning given to that expression of a formal land survey plan in the Surveying and Spatial Information Act 2002. In that Act, in s 3, a formal land survey plan is defined as meaning a survey plan describing the results of a land survey being a plan prepared in accordance with the regulations by or on behalf of a registered land surveyor. I am satisfied that, for these purposes, there are four such plans to which I need to have regard, each of which will be dealt with later in this decision. 18During the course of the hearing, I had occasion to raise with the parties the question of whether or not s 135L of the Real Property Act 1900 had, by virtue of 135L(2), any part to play. First, Mr Imbree conceded, quite properly, that the application that had resulted in a re-drawing of the mean high water mark edged boundary of his property, in 2011, was not an application made under pt 14A of the Real Property Act. I therefore did not need to take that matter further - although I do note, as Mr McEwen SC pointed out, that the effect of s 55N of the Coastal Protection Act 1979 would prevent any re-drawing of the boundary of Mr Imbree's allotment pursuant to pt 14A of the Real Property Act had he intended to do so. 19There is no doubt, as a consequence of the definition of environmental planning instrument in s 4 of the Environmental Planning and Assessment Act 1979 and the definition of instrument in s 3 of the Interpretation Act 1987, that that with which I am dealing is subordinate legislation. 20I now turn to the question of deeming. Mr McEwen has taken me in his written submissions to the decision of the then Chief Justice of the High Court in Muller v Dalgety & Co Ltd (1909) 9 CLR 693. Sir Samuel Griffith said that the word "deemed" is more commonly used for the purposes of creating, what from a British case, what is called a statutory fiction. Later in the decisions of the concurring Justices, Barton J observed, citing another English decision: Generally speaking when you talk of a thing being deemed to be something you do not mean to say that it is that which it is deemed to be. It is rather an admission that it is not what it is deemed to be and that notwithstanding it is not that particular thing nevertheless for the purposes of the Act it is to be deemed to be that thing. 21Finally, O'Connor J, on p 712, deals with the same proposition by agreeing that persons (in that instance) can be deemed to be stowaways (even though they are not actual stowaways) by the concept of a deeming process. 22So in this case, it is possible to deem that the mean high water mark is at some location other than where the actual high water mark might be. 23What I am obliged to determine in these proceedings is where, with respect to 28 Rutherford Avenue, the mean high water mark is deemed to be and where, as a consequence, the foreshore building line follows from that. 24That takes me to consideration of the question of what plan is the relevant one. I am satisfied that the plan, that is, the new plan created on Mr Imbree's behalf, that is Deposited Plan 1164099, cannot provide any assistance to him as there is no way that that plan coming into effect in 2011 can be "put in the Tardis" and taken back to be a plan that was registered with the Registrar General on or before 24 April 1980. 25Mr Imbree invites me to construe the words "shown on" as simply meaning depicted. In his supplementary submissions he draws comfort from s 7A of the Conveyancing Act 1919 and a variety of other provisions in that Act to suggest to me that shown on merely means that which is there depicted without any form of qualification or otherwise. I am not satisfied that that can be the position. 26Mr Imbree relies on a detail and level plan, which is clearly a plan prepared by a surveyor, to adopt and build upon an element contained in Deposited Plan 550640 (which is a deposited plan created in August 1971 - clearly before the relevant date in the definition of deemed high water mark) to use a tail flowing from the south-eastern corner of that plan's boundary definitions, that plan depicting a subdivision of the allotment that is adjacent then to the west of Mr Imbree's with a long common boundary at the time of its subdivision. 27I am satisfied that "shown" must be shown on any plan relating to that land for which it was registered. The land that is comprised in DP 550640 is clearly the old allotment and its subdivided form of the adjacent allotment to the west of Mr Imbree's - it is not a plan relating to this land that is the subject of the proceedings with which I am currently dealing. 28As a consequence, I am satisfied that that which Mr Imbree seeks to have me adopt arising out of exhibit G (which finds its foundation in the descriptive freehand tail of mean high water mark to the east of the south-eastern corner of 30 Rutherford Avenue) is not a construction that is open to me. Similarly, exhibit 16 (which is Deposited Plan 1164099, the 2011 instrument that depicts the correct geographic location of the mean high water mark on Mr Imbree's property), is not available to him as I have already indicated. 29That leaves me with the sole document that is available to Mr Imbree that is, relevantly, a plan that was current as at 24 April 1980 and registered with the Registrar General prior to that date (being Deposited Plan 10703), which is a plan of subdivision that created the various original allotments along and around Rutherford Avenue and two other streets in the vicinity. That plan shows boundaries of Mr Imbree's property that are defined by their length from Rutherford Avenue and show a mean high water mark as being the point of boundary definition immediately to the south-east. 30I have had the advantage of expert evidence from a number of surveying and spatial information experts who indicate, in their joint statement, which is exhibit 11, that they agree that the original intention of Lot 20 in Deposited Plan 10703, that being Mr Imbree's property, was to define land that extended from Rutherford Avenue to Port Hacking. 31Unfortunately, I am satisfied, that that is not what the plan in effect did. The plan showed an allotment with fixed side definitions noted but without the benefit of precise survey points, as ending at the high water mark. 32Also, unfortunately in this instance, despite what is the patently self-evident factual absurdity of the position, the high water mark shown on DP 10703 is some 20 m in the air and some 20 m or so inland of where is located the actual mean high water mark. 33Further, unfortunately, I am obliged to apply the law - following the provisions of the Sutherland Shire Local Environmental Plan 2006 - rather than adopting what might otherwise be a proper factual approach (one that I hope might be adopted in any mapping that will follow from the preparation of the standard template Local Environmental Plan for Sutherland Shire). 34Finally, unfortunately, I am therefore obliged to deal with the location of the foreshore building line on the basis of where I am compelled to go rather than where one would ordinarily go to - a point where, one centimetre lower, one's feet would be wet and one centimetre higher one's feet would be dry. 35There is not, even in the worst prognostications of the International Panel on Climate Change, the remotest prospect, perhaps in the next millennium, that the mean high water mark would be actually at the location that the deemed high water mark is as a consequence of the Sutherland Shire Local Environmental Plan 2006. 36As I had occasion to remark yesterday, however, in another proceedings involving the same parties, the law, as Mr Bumble says in Oliver Twist, is often an ass and this is a prime example thereof. 37However, having vented myself in that regard, I now turn to what should be the deemed mean high water mark derived foreshore building line for Mr Imbree's property. 38I have come to the conclusion - despite all factual observations demonstrating reality to be to the contrary - that the deemed high water mark must be the blue line depicted in exhibit 14, one that follows from the deemed high water mark on the adjacent property (which has at least part of the private open space living area of its house deemed to be under water despite the fact that it is some 25 m above that level), crossing Mr Imbree's property and then turning through an acute angle to going back to the mean high water mark that is derived from the 1971 plan of the adjacent property to the west. 39The consequence of that also is that the foreshore building line that must be derived on any rational methodology following from the definition of foreshore building line from the location of the deemed mean high water mark is that which is depicted in red as the Sutherland Shire Local Environmental Plan 2006 foreshore building line shown on exhibit 14. 40It will be self-evident, by now, that, whilst I am compelled to reach that conclusion, I do not find it an intellectually satisfactory result despite the fact that it is a legally necessary one. 41The consequence of that is that I have concluded that the foreshore building line with respect to Mr Imbree's property cuts through the proposed new dwelling on his property. It does so in a variety of areas. 42At the sub-floor level, the majority of that which is proposed at this level (including the totality of the family room and guest space, most of the bathroom, portion of the cellar and the totality of the access stairs) would be regarded as being forward of the foreshore building line. 43At the ground floor level, the totality of the terrace, virtually the totality of the dining area and possibly part of the al fresco dining area to the kitchen together with, likely, the totality of the stairs would also be forward of the line whilst, at the first floor level, portion of the main bedroom and the totality of the roof garden on top of the dining area would be forward of the foreshore building line. 44I have considered the possibility of dealing with this application consistent with the "amber light" approach which I discussed briefly in Champions Quarry Pty Limited v Lismore City Council [2011] NSWLEC 1124 where Sullivan AC and I described our consideration of the issues in those proceedings by adopting the amber light approach. We described at paras 148-51 that approach. It has us asking ourselves (and, in this case, me asking myself) three questions. 45First, on the merits, "Is the application capable of being approved as applied for?" Given the conclusion that I have reached about the location of the foreshore building line, the answer to that is unequivocally no. 46If I were to conclude that it is not capable of being approved as applied for (as I have), I do not automatically refuse the proposal but I ask myself the question, "Is the proposal capable of being given development consent within the scope of the present application but with amendments or changes that are defined by me with sufficient precision as to be incorporated in either plans or conditions of consent?" 47I have reached the conclusion that the scope of that which would need to be excised from the proposed dwelling would require such a significant internal reorientation and alteration to the design that those changes would not be ones that were capable of being required within the scope of the present application. Without engaging in the merits of what the present design does or does not have and what such an amended design would or would not have, the difference is necessarily sufficiently great that I am unable to do so pursuant to an amber light approach as to the proposed building. 48I now turn to consider, on an amber light approach basis, a further alternative - that is the option of approving the subdivision element but not approving the dwelling. I do not consider that that option is available to me either. The uncontradicted expert evidence that is before me and, indeed, that which was self-evident during the course of the site inspection and during the viewing of the property from the water of Gunnamatta Bay and Port Hacking, is that this is a sensitive site that requires careful treatment. 49Whilst Mr McDonald, who gave expert evidence for the council, was prepared to concede that, in his opinion, a more modestly scaled dwelling was potentially capable of being erected on a subdivision of the nature proposed - there being other issues relating to the subdivision but ones which I do not need to deal with in this - but that there would need to be an identified footprint and building envelope to enable consideration to be given of whether it was appropriate or ultimately possible to erect a new dwelling on a subdivision as now proposed. 50I am satisfied that, without such a building footprint designation and without a building envelope described attached to a subdivision application, it would also be a step too far, within the amber light process, to grant consent for the subdivision but requiring deletion of the building. I am also satisfied that, if I were to do so, it would also not be something that I should properly do within the scope of the present application. 51The consequence of all of that is that: (1)The appeal in matter 10376 of 2012 is refused. (2)Development Application 11/0931 for Torrens Title subdivision of an existing lot into two lots and the construction of a dwelling on the proposed new allotment to be known as Lot A must be determined by the refusal of development consent (3)The exhibits, other than Exhibits 1, 2, 14, 15, 16, 17, 18 and G, are returned. Tim Moore Senior Commissioner 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: 30 October 2012