Imbree v Sutherland Shire Council

The LEP 23Clause 5(2) of the LEP provides that "notes in this plan are provided for guidance and do not form part of this plan". 24Clause 8(3) sets out the provisions of the plan to which State Environmental Planning Policy No 1 applies. 25Clause 11 contains the zoning table, and it is common ground that the Imbree's proposals require development consent. 26Clause 17 deals with "buildings or works on land traversed by FBL". It is necessary to set out the majority of cl 17: (1) Application of clause This clause applies to land that is traversed by a foreshore building line. (2) Objectives The objectives of this clause are as follows: (a) to avoid adverse ecological effects on waterways, (b) to protect and enhance significant natural features and vegetation on riparian land, (c) to retain endemic vegetation along foreshore areas, (d) to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat, ... (h) to achieve an appropriate balance between private development and the public use of waterways, ... (l) to ensure that there is no development below any foreshore building line, except as provided by this clause. (3) Meaning of "foreshore building line"-generally In this plan: foreshore building line, in relation to land (other than land referred to in subclause (4) or (5)), means: (a) if a foreshore building line is shown on the map in relation to the land: (i) in the case of land that has a deemed mean high water mark-a line across the land that is parallel to, and the distance specified on the map from, that deemed mean high water mark, or (ii) in the case of land that does not have a deemed mean high water mark-a line across the land that is parallel to, and the distance specified on the map from, any boundary of the land that adjoins a waterway or waterfront reserve, or (b) if a foreshore building line is not shown on the map in relation to the land: (i) in the case of land that has a deemed mean high water mark-a line across the land that is parallel to, and 7.5 metres from, the deemed mean high water mark, or (ii) in the case of land that does not have a deemed mean high water mark-a line across the land that is parallel to, and 7.5 metres from, any boundary of the land that adjoins a waterway or waterfront reserve. ... (6) In subclauses (3)-(5): 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. Note. The deemed mean high water mark is not affected by any reclamation of land or other changes that may have occurred since registration of the plan concerned. ... (7) Controls 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. (8) Nothing in subclause (7) or clause 11 prevents consent being granted to: (a) any alteration (not being an addition) to an existing dwelling that is forward of the foreshore building line, or (b) the erection, carrying out of, or an alteration or addition to, an excluded building or work. (9) Nothing in subclause (7) or clause 11 prevents consent being granted to the erection of a dwelling, or any addition to an existing dwelling, on land between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed if: (a) the consent authority has considered the objectives of this clause, and (b) the consent authority is satisfied that: (i) the new dwelling or addition will not be erected any further forward of the foreshore building line than any existing dwelling on the land, and (ii) the new dwelling will not dominate the locality in which it is erected as a result of its height, bulk, design, colour or detailing, and (iii) the natural qualities of the foreshore are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and (iv) in the case of the erection of a dwelling-there is no reasonable alternative that would allow a new dwelling to be located behind the foreshore building line. (10) In this clause: excluded building or work means any of the following: (a) a boat shed, (b) a watercraft facility, (c) an in-ground swimming pool that is no higher than 300 millimetres above ground level at any point, (d) a work to enable pedestrian access, (e) landscaping, (f) a barbecue, (g) a utility installation (except for a gas holder or generating works). riparian land means: (a) submerged land, or (b) land that adjoins, directly influences or is directly influenced by a body of water, and the body of water itself. 27The term "mean HWM", which is central to cl 17 of the LEP, is defined in cl 5 of the Surveying and Spatial Information Regulation 2012 as "the line of mean high tide between the ordinary high-water spring and ordinary high-water neap tides". Clause 51(a) of that Regulation also provides that any reference to "mean HWM" is taken to be a reference to "HWM". 28Lot sizes are dealt with in cls 39-42 of the LEP, in respect of which clauses, cl 38 relevantly provides: References to area, width and depth of lot in clauses 39-42 (1) For the purposes of applying clauses 39-42 to proposed development, the following is to be excluded in calculating the area of a lot of land: (a) land on which the proposed development is prohibited under this plan (other than land on which the proposed development is prohibited solely because of the application of clause 17), (b) any access corridor to or from the lot if the lot is a hatchet-shaped lot. Note. Among other things, clause 17 imposes certain restrictions on the erection of buildings on land traversed by a foreshore building line. (2) For the purposes of clauses 39-42, the points on the boundaries of a lot of land between which the width or depth of the lot is to be measured are to be as determined by the consent authority having regard to the objectives set out in clause 37.

Relevant lands, maps, and zonings 29Numerous deposited plans ('DP') have been referenced in the proceedings, viz:

• DP 5038 (tab 11 of Exhibit A6) was surveyed in May 1907, and certified on 7 September 1979;
• DP 10703 (tab 12) was surveyed in January 1921;
• DP 550640 (tab 13), subdividing Lot 19 into Lots 191 and 192, immediately west of Lot 20, was registered on 23 September 1976;
• DP 1164099 (shown as "DP 1164099P" in tab 14), being a "plan of redefinition of Lot 20 DP 10703", renumbering the subject site as Lot 10, was registered on 3 May 2011. 30The relevant extract from the zoning map of the 1980 Planning Scheme Ordinance appears at tab 15, and the map from the 2006 LEP appears at tab 20 (Exhibit 15 is an A3 copy). The subject site would appear to be within Zone 1 Environmental Housing (Environmentally Sensitive Land). 31Exhibit 14 before the Commissioner, brought forward again on this appeal, is an officially marked-up map of the relevant areas of Lot 20/10, dated 6 September 2012. 32The respondent relevantly says (subs, pars 15-17): 15. The current title particulars for the Land is lot 10 in deposited plan 1164099. DP1164099 was registered by the Registrar General on 2 May 2011. The Land was formerly comprised in Lot 20 in Deposited Plan 10703. DP10703 was registered by the Registrar General in January 1921. The current title of the Land, 10/1164099, was a result of a redefinition of the former lot 20 in DP10703. The redefinition was necessary because the dimensions and area shown in the former DP10703 were subsequently found to be incorrect. 16. Adjoining the Land to the south west is 30 Rutherford Avenue. The current title for that parcel of land is lot 192 in DP 550640. DP 550640 was registered on 3 September 1971. The title of 30 Rutherford Avenue was formerly comprised in lot 19 in DP 10703. The current title of 30 Rutherford Avenue in a redefinition and subdivision of 19/10703. The redefinition was also necessary because the dimensions and area shown in the former title were subsequently found to be incorrect. Adjoining the Land to the north east is 26 Rutherford Avenue. The current title for that parcel is lot 21 in DP 10703. 17. The consequence of the title history of the Land and adjoining lots is relevant to the requirements of clause 17(6) of SSLEP. DP10703 and DP 550640 were registered prior to 24 April 1980 and were current at that date but there was a dispute as to whether DP550640 was a plan "relating to" the Land and a dispute as to the location of the HWM "as shown" on DP10703.

Imbree No 1 33The Senior Commissioner found that DP 1164099 was not created before 24 April 1980, and could not be a relevant plan for the purposes of cl 17(6) (at [7]). He noted (at [6]) that the Imbrees submitted that DP 10703 was a relevant plan, even though it showed the HWM (at [7]) as "some 20 m in the air above mean HWM and a considerable distance inland of the edge of the cliff". 34The Senior Commissioner took the Imbrees' position at its highest (see [9], [12], [15] and [17]), but ultimately found that the additions and alterations to the existing dwelling would be "further forward" than the FBL, using the methodology prescribed in cl 17(3)(a)(i), and applying the control provision in cl 17(9). 35The respondent noted (subs par 42) a typographical error in the Senior Commissioner's judgment: There is a typographical error in the last line of paragraph [12] of the Judgment in Imbree No.1. The reference to lot 20 should be a reference to lot 21. This is apparent from Exhibit 14 and the whole of paragraph [12] of the judgment in Imbree No 1.

Imbree No 2 36In dealing with the subdivision of the land and the proposed erection of a new dwelling on that subdivided land, the Senior Commissioner was required to determine, for the purposes of cl 17(6), what constituted the "deemed mean HWM", i.e. the "deemed HWM", and then, as a consequence, what constituted the FBL. 37The Senior Commissioner referred (at [10]) to the note appearing after cl 17(6) in the LEP (see in [26] above): There 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. 38The Senior Commissioner acknowledged (at [19]) that he was dealing with subordinate legislation, and relied (at [11]-[16]) upon Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, as the guiding authority for construing statutory provisions. 39The Senior Commissioner referred (at [20]) to the respondent's submissions on "deeming" as creating a statutory fiction, and then noted: 22 So 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. 23 What 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. 40The Senior Commissioner again made reference to DP 1164099, but again (at [24]) was not satisfied that it was a relevant plan. 41DP 550640 was determined to be a plan relating to the lot adjacent to the Imbrees' land (lot 19 in DP 10703), and, even though it was a plan made prior to 1980, the words "shown on" were held by the Senior Commissioner (see [25]-[27]) to mean "shown on a plan relating to that land for which it was registered", and, as such, DP 550640 was not relevant to the Imbrees' land. 42DP 10703 was found (at [29]) to be the only relevant plan, and the Senior Commissioner concluded (his emphasis): 38 I 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. 39 The 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. 40 It 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. 43The Senior Commissioner found that parts of the proposed new dwelling would be forward of the FBL and gave consideration to the "amber light approach", but determined that it would not be appropriate (see [46]-[50]).

Did the Senior Commissioner err in construction of 'deemed mean HWM' (LEP cl 17(6)) 44There are two common interpretations of a "deeming" provision in a statute. Windeyer J, in Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; 122 CLR 49 (at 63-67), referred to the two interpretations, firstly, the creation of a statutory fiction, and, secondly, simply stating the effect or meaning of a provision: In Muller v Dalgety & Co. Ltd. (3), Griffith C.J said that "deemed" is commonly used "for the purpose of creating...a 'statutory fiction'...that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate. When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced". This passage has oft been quoted in Australian courts. It is a recognition that the verb "deem", or derivatives of it can be, can be used to extend the denotation of the defined term to things it would not ordinarily in parlance denote...often. This is often a convenient device for reducing the verbiage of an enactment. But that the word can be used in that way and for that purpose does not mean that whenever it is used it has that effect. After all, to deem things simply means to adjudge or reach a conclusion about something. ... It may be simply the statement of an indisputable conclusion, as if for example one were to say that on attaining the age of twenty-one years a man is deemed to be of full age and no longer an infant. ... In New South Wales the Real Property Act, 1900 s.35, states when a grant certificate of title or instrument affecting land under the provisions of the act shall be deemed to be registered, and adds that "the person named in any grant or certificate of title, or other instrument so registered as seised of or taking any estate or interest shall be deemed to be the registered proprietor thereof". This provision of the Torrens system is a definition of registered proprietor, not based in any sense on a fiction. ... There is no presumption, still less any rule, that wherever the word "deemed" appears in a statute demonstrates a "fiction"... 45When considering whether a statutory fiction is being introduced it is prudent to consider the purpose for its introduction (Muller v Dalgety Co Ltd (1909) 9 CLR 693, at 705), and whether something is created by "deeming" (Re John Blake Paviour Lewis v Minister for Health [1985] FCA 140). 46As an LEP is an instrument made by a Minister, the ordinary rules of construction provide that its intention should be satisfied by an interpretation which promotes its objects and purposes. Where two meanings are open, it is proper to adopt a meaning which will avoid consequences which appear irrational or absurd in that context (Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297). 47The appellants submitted (par 9.1.1) that, "deemed mean HWM" is a truncated form of words to refer to the lengthy definition contained in cl 17(6). Its use does not extend the meaning of "mean HWM" or "HWM", but avoids confusion in the reader as both terms are referenced. The HWM depicted on DP 10703 is simply a line indicative of where the HWM actually is (i.e. at the interface between land and water), as was the usual survey practice at the time of the relevant survey (subs in reply, par 3.4), and it is necessary to undertake a historical survey to locate the HWM on the plan, with precision. 48The respondent submitted (par 28, quoting par 2 of its subs to the Senior Commissioner) that the use of the word "deemed" creates a statutory fiction, in that it allows reliance to be placed on the HWM depicted on the plan, and the actual HWM becomes irrelevant, to avoid debate over the precise location. As submitted to the Senior Commissioner (as par 16), the reliance on the plan allows for consistency in interpretation of the HWM. The respondent repeated its acknowledgement (as par 27) that that deemed mean HWM may "be in a different location to the boundary of the land that adjoins the Port Hacking Waterway (the actual MHWM)". 49The objectives of clause 17 (quoted in [26] above) refer to the balance between private development, the public use of waterways, and the prevention of development between the FBL and the water. 50One possible reason for introducing a statutory fiction to the clause would be, as the respondent submitted, to allow for uniform interpretation of the HWM and the FBL, by placing reliance on the markings on the relevant plan. 51The "deemed mean HWM" extends the definition of "HWM" or "mean HWM" by including the requirement that it must be shown on a 'current plan' relating to the land.

The term "as shown on any plan relating to that land" 52The appellants take issue with the finding of the Senior Commissioner that "as shown on any plan relating to that land" must be construed as "as shown on any plan relating to that land for which it was registered" (see [41] above). 53The appellants repeated many of the submissions made before the Senior Commissioner, particularly that "shown on" should simply mean "depicted". They submitted that readers of the provision are capable of interpreting survey, and the intention of the draftsperson was that the HWM could be located with precision by conducting an historical survey (subs par 9.2.3.4). Furthermore, the ordinary legal rules of interpretation should be applied, to find the exact location and shape of the HWM on the plan (Tp17, LL27-30 and 38, and subs par 9.2.3.1). 54The appellants relied upon Comserv (No 1877) Pty Ltd v Figtree Gardens Caravan Park [1999] NSWSC 124; 102 LGERA 74 as authority for the process of determination of any inconsistencies revealed on the plan (subs par 12.2). Specifically, the appellants rely upon: 26 An instance where figures on a plan were not treated as controlling the description in the plan was Small v Glen (1880) 6 VLR 154: see 161-162. However there are no general rules of law according to primacy in all cases to abuttals or monuments; the question is always one of the construction of the instruments of title. Finding the actual sites of the boundaries as they were at the date of the Deposited Plan is a much more pressing consideration than finding some resolution in which all of the stated dimensions are literally fulfilled. 27 A Certificate of Title is an ordinary written instrument and must be construed in accordance with the ordinary rules for the construction of documents of title, and without extrinsic evidence to identify its subject matter it has no intelligible meaning: see per Griffith CJ in Overland v Lenehan (1901) 11 QLJ 59 at 60. 55The respondent submitted that the words were correctly interpreted, by the Senior Commissioner, as taking on their ordinary meaning. The purpose of cl 17 is not to seek to define title or the boundary of the property (Tp41). 56Moreover, the respondent submitted that DP 10703 reveals no inconsistencies on its face. It is only when reference is made to extrinsic material that such errors are revealed, c.f. the side boundary measurements of DP 10703 and DP 1164099 (Tp44, LL15-16). 57DP 10703 depicts the HWM as a curved line extending from the side boundary points of Rutherford Avenue to the water's edge. This line then allows for a FBL to be plotted parallel to the HWM, at a fixed distance from it, applying cl 17(3) and 17(6). 58The respondent also noted that cl 17(3)(a)(i) and (ii) distinguish between plans which have a deemed mean HWM and plans which do not, to provide points for the measurement of the FBL. There would be no need to distinguish between the two types of plans for plotting a FBL, if the HWM were always at the interface between land and water.

"Current Plan" - as at April 24 1980 59Both sides accept DP 10703 as a "current plan" for the purposes of cl 17(6). However, the appellants submit there are additional current plans: (2)DP 556040 depicts the common boundary of lots 19 and 20 in DP 10703, and also the flow-on from the HWM in lot 19 to lot 20 (Tp12, LL5-7) (3)DP 5038, of which DP 10703 is a plan of subdivision, is relevant for the "residual lot" created by the error on DP 10703, as provided by s 7A(4) of the Conveyancing Act 1919 (subs titled "Relevance of DP 5038"). 60The respondent submitted whilst DP 550640 relates to lot 19, the "tail" referred to by the appellants is unsurveyed, and can have no utility in determining the HWM for the relevant land. DP 5038 is superseded by DP10703, and relies upon Section 7A(3) of the Conveyancing Act: (3) So much of a Crown plan or registered plan as merely identifies: (a) land that is, or is proposed to be, leased (otherwise than for a period that, including the period of any option to renew, exceeds 5 years), or (b) land the subject of a plan of subdivision for lease purposes (within the meaning of Division 3B or 3C of Part 2), or (c) land the subject of a special purpose lease within the meaning of Division 3A of Part 4 of the Crown Lands Act 1989 or Part 9E of the Western Lands Act 1901, is taken not to form part of a current plan.

The Senior Commissioner did not err in construing "Deemed HWM" 61The words of cl 17(6) are unambiguous and should take on their ordinary meaning: the term "as shown on any plan relating to the land" was correctly construed by the Senior Commissioner as being restricted to what is depicted on the current plan. 62DP 10703 relates to the property, was registered before 24 April 1980, and, on its face, subdivides completely DP 5038. It is, therefore, the relevant current plan for the purposes of cl 17(6). 63No inconsistency is revealed on the face of the current plan, and, as such, DP 5038 cannot be the current plan for the "residual lot", for the purposes of the deemed mean HWM, as the inconsistency is not revealed until reference is made to other plans.

Did the Senior Commissioner expressly exclude the note? 64A further appeal ground states the Senior Commissioner expressly excluded using the notes in the LEP, contrary to the provisions of cl 5. 65The Senior Commissioner clearly turned his mind to the note (see [37] above) and acknowledged it was provided for explanatory purposes, which can be equated with guidance, in line with cl 5(2). The Senior Commissioner went on to state that the note "does not do any work in the interpretation of or application of the plan's terms". 66Pepper J, in Svedas (at [20] (b) and (c)), summarised the principle that a fine tooth comb or pernickety approach should not be taken to the judgments of Commissioners to discover an error in their reasoning. 67While the language may not be entirely clear, a fair reading of the Senior Commissioner's reasons in this matter does not support the finding that the Senior Commissioner expressly excluded using the notes in the LEP and this appeal ground should be dismissed.

Whether finding the HWM at the end of the side boundaries (on DP 10703) was contrary to case law and survey practice, and/or was absurd and unfair and/or illogical 68The appellants sought to rely on common law boundary principles, and also with reference to the text "Some Aspects of Title Boundary: Location in NSW" by K.E Hamer, to show that the finding of the HWM at the end of the side boundary measurements was illogical. 69The appellants submitted that the laws of boundary determination should be utilised in understanding and determining inconsistencies within plans of survey, not just in situations where a boundary is in dispute. Any irregularities on the relevant plans (referred to at [33] above) should be determined by reference to the natural feature, i.e. the land/water interface, rather than the side boundary measurements (subs par 12.1). The inconsistencies would then be resolved, avoiding an absurd or illogical result. It is necessary to ascertain the intention of the draftsperson of the relevant plan to determine the intended HWM at the time of the drawing of the plans. The comparison of DP 10703 with DP 1164099 shows that over time the actual HWM has not changed location. 70The appellants submit (par 13.3) that: The level of absurdity is further shown by supposing that the side boundary measurement error was shown measured in inches instead of feet. This means that the Council's interpretation of the location of the deemed mean high water mark puts the foreshore building line past Rutherford Avenue, with the result that no building work could be undertaken on the subject land (except as allowed for by clause 17(9) ...). 71Rutherford Avenue is created in DP 10703 (the subdivision of DP 5038) and it is illogical to look to DP 10703 to determine the HWM which was already plotted in DP 5038 (Tp27, LL4-8). 72The respondent submitted before the Senior Commissioner (par 22) that the principles of boundary determination were irrelevant, in as much as they concern title disputes, because cl 17(6) does not call for the use of extrinsic material (see above at [61]). The side boundary measurements are dimensioned, and locate the HWM at stated distances from Rutherford Avenue, which the surveyors agreed was "in the right place". The relevant section of the transcript referring to Rutherford Avenue is extracted below (Tp12.9.12, p44, LL3-10): SENIOR COMMISSIONER: so am I safe then, gentlemen, do all three of you agree that Rutherford Avenue is in the right place? WITNESS HARRISON: Yes WITNESS HEAPY: Yes WITNESS O'MALLEY: Yes 73References by the applicants to absurdity, unfairness and illogicality arise only when the true location of the mean HWM is sought, and the deeming provision ignored, an approach the legislation seeks to avoid (subs par 28, sub par 17). The intention of the provision was to provide a location of the mean HWM from which the FBL could be plotted (subs par 28, sub-par 5).

The Senior Commissioner did not err in finding the HWM at the ends of the side boundaries of the property 74As Lloyd J noted in Creighton v Sutherland Shire Council [2001] NSWLEC 190 ('Creighton') (at [11]) the underlying purpose of the provision of a FBL is to create a line on a map, beyond which a person must not erect a building (or carry out work for the purposes of cl 14A(3) of the LEP being considered by his Honour). 75The purpose of cl 17 of the current LEP 2006 is to provide controls for properties, which are subject to a FBL, not to define the boundaries of the property. 76The planners, in their joint evidence, discussed the intention of the draftsperson of DP 10703, and it agreed that the intention was not carried out. The Senior Commissioner acknowledged the factual absurdity (see [42] above), but was bound to apply the law, and the proper construction of cl 17(6) of the LEP, as a result of which the deemed mean HWM was found to be the blue line on Exhibit 14 (at [33] &[38] of Imbree No 2). 77Basten JA in Hastings Co-Operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; 171 LGERA 152 noted (at [39]) that "the promotion of logic and consistency provides no basis for a court to re-write a planning instrument". 78I agree with the Senior Commissioner that the law has to be applied as it stands, and the only conclusion available to the court, at first instance and on appeal, is that, on the face of the plan, HWM is at the ends of the side boundaries. 79While that conclusion is sufficient to determine this appeal, I will, in case it is wrong, and for completeness, now also consider the other appeal grounds.

Whether the Senior Commissioner erred in finding the deemed mean HWM extended along the common boundary between lot 19 and lot 20 80The appellants submitted that none of the relevant plans (DP5038, DP10703, DP550640, DP1164099) show the mean HWM as following the boundary line, as determined by the Senior Commissioner. 81Having noted (in subs par 42, [35] above) a typographical error in the Senior Commissioner's judgment, the respondent noted (in par 43) that the Senior Commissioner explored a "hypothetical", an appropriate course for him to pursue, in order to consider the appellants' position at its highest. 82Plans of redefinition for lots 19 and 20 were available, but no such plan was in existence for lot 21. The eastern boundary of lot 20 having extended further seaward than the boundary for lot 21, the Senior Commissioner hypothesised that there was no land available to the east of the extended common boundary of lot 20, on the lot 21 side, creating the "varied FBL based on mean [HWM] from DP 1164099". 83Even if the Senior Commissioner was in error, the outcome of the appeal will not change, as, in Imbree No 2, the FBL did not rely on the common boundary for lots 20 & 21.

Whether the "residual lot" on DP 10703 should have its own deemed mean HWM 84As DP 1164099 indicated that the side boundary measurements depicted on DP 10703 are incorrect, the appellants submitted that the "residual lot" created must have its own deemed mean HWM, which would be that depicted on DP 5038, and repeated on DP 1164099. 85The respondent repeated here its submissions that DP 5038 is not a "current plan" for the relevant land, and so cannot confirm the location of the deemed mean HWM shown on DP10703 for the purposes of cl 17(6). 86As determined above, the only current plan for lot 20 is DP 10703, and no errors are revealed on the face of that plan. DP 10703 purports to be a complete subdivision of DP 5038, and the 'residual deemed mean HWM' is located only by reference to the later plan of redefinition for DP 1164099, meaning that no inconsistency on the plan can displace the deemed HWM for DP 10703, under the provisions of cl 17(6).

Whether the Senior Commissioner erred in accepting the location of the FBL put forward by the defendant 87This ground of appeal relates to a finding of fact by the Senior Commissioner which raises no question of law that can be determined by this appeal, but, if it could, I would not uphold the appeal on this ground for the following reasons. 88Lloyd J referenced, in Creighton, the meaning of "parallel" (at [14]) from the Macquarie Dictionary, which defined it as meaning: (of a single line, plane etc) equidistant from another or others at all corresponding points. 89The appellants submitted that the joint experts were mistakenly of the opinion that the FBL had to be a minimum of 20 metres from the HWM, whereas the requirement is only 20 metres. They proposed (subs p34) a methodology of plotting the FBL using concentric circles. 90The respondent relied upon their submissions relating to the deemed mean HWM, the surveyors in their evidence having agreed that the blue dashed line was 20 metres from, and parallel to, the blue deemed HWM (see subs par 51 and Exhibit 14). Mr Heapy used the decision in Creighton as authority (see T12.9.12, p45) for the red line on Exhibit 14 to be the FBL using lines on the neighbouring properties as a guide. The dashed blue line was known as the "Harrison line", and he confined the measurement of the line to the subject lot. (T12.9.12, p47, L4). The appellants' witness Mr O'Malley found that the blue dashed line would be the FBL, partly "overrun" by the red line (T12.9.12, p47, LL2-3). 91The deemed mean HWM proposed by the appellants did not satisfy the requirements of cl 17(6), and, therefore, their preferred green line on Exhibit 14 cannot be the FBL for the property. 92The Senior Commissioner chose the red line as the FBL, as it was more favourable to the Imbrees, and took their position at its highest, despite the question whether the red line, or the blue dashed and orange line, is chosen as the FBL. The same problem remains, namely the building is still 'further forward' of both lines. The respondent submitted before me that the Senior Commissioner's chosen line was as close as possible to "parallel", and meets cl 17(3).

Whether the Senior Commissioner failed to give (adequate) reasons 93It is alleged that the Senior Commissioner failed to give reasons for his findings: (1)that the mean HWM is at the end of the side boundary measurements for lot 20; (2)of what constitutes the FBL in respect of lot 10 in DP 1164099; and (3)that the proposed development of the existing building (additions) was forward of the FBL 94The appellants submitted (par 20.3) that on the first two of these critical issues between the parties, the Senior Commissioner did not provide stepped reasoning, and ignored both the evidence of their expert, Mr O'Malley, and paragraphs 1-15 of their written submissions. 95The respondent submits that, the parties having made mutually exclusive submissions on those issues, the Senior Commissioner clearly articulated his findings, and simply accepted the submissions of the respondent (see [25]-[35] of Imbree No 2). 96There is a duty to give reasons for key issues in dispute (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR at 259 per Kirby J; Misfud v Campbell (1991) 21 NSWLR 725 at 738 per Samuels JA), but that duty is sufficiently satisfied by giving a broad outline of the grounds for findings of fact, (per Lloyd J Merimbula Nominees Pty Ltd v Bega Valley Shire Council [2007] NSWLEC 529). It is not necessary to make explicit findings on each piece of evidence if the conclusion reached is appropriately clear (see Beale per Meagher JA, at 443, and the passage quoted in [22] above). The decision/finding made at first instance may prove to be the only conclusion available on the facts. 97The Senior Commissioner stated clear reasons for concluding that the mean HWM is at the ends of the side boundaries (at [27]-[31] of Imbree No 2). 98The location of the FBL for lot 10 in DP 1164099 was not a key issue in these proceedings as it is not "a current plan" for the purposes of cl 17(6). Any perceived inadequacy in the relevant reasoning of the Senior Commissioner is irrelevant to the determination of this appeal. 99The Senior Commissioner concluded, in Imbree No 1 (at [14]), that 'there is a considerable portion of the structure proposed to be constructed in matter 10377 of 2012 that is forward of the [FBL]", and he then acknowledged the exceptions in subclauses 8 and 9. He determined (at [15]) that the Imbrees' case must fail as a result of the provisions of clause 17(9)(b)(i), and (at [16]) that the proposed external balcony additions to the existing dwelling would be "further forward" of the FBL. 100The respondent submitted (par 60) that the Senior Commissioner here again simply adopted its submissions, over the contrary submissions of the appellants on where the line is drawn to determine the question of "any further forward" (c.f. Exhibits A5 and R1). 101It could be argued that more fulsome reasons for the invocation of cl 17(9) may have been appropriate, but the submissions before me on appeal relevantly repeated those made to the Senior Commissioner at first instance, and this would appear to be a case like that contemplated by Meagher JA in Beale, namely that the Senior Commissioner's conclusion was simply the only one available on the established facts. 102I agree with the Senior Commissioner's construction of cl 17, and any perceived shortcoming in the reasons he gave is not considered sufficient to vitiate his decision.

Conclusion 103For all these reasons the appeal must be dismissed. 104Both the appellant's summons and respondent's written submissions (in par 62) sought an order for costs, based on the total success of one side or the other, but the question of costs was not argued during the hearing, so I will formally reserve it.

Orders 105The Orders of the Court will, therefore, be: (1)The appeal against the two judgments of the Senior Commissioner is dismissed. (2)The question of costs is reserved. (3)Exhibits 14 and 15 are to be returned to the Class 1 appeal files, but the other exhibits are returned to the parties.

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: 10 September 2013