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Judgment

1. BASTEN JA: The question before the Court was whether the Land and Environment Court erred on a question of law in refusing a development application on the ground that the development was not "compatible with the flood hazard of the land".
2. In June 2016 the applicant applied, on behalf of a prospective developer, for approval of a proposed residential flat development on Loftus Street, Bowral. In February 2018 the Council refused consent and the applicant lodged an appeal in the Class 1 jurisdiction of the Land and Environment Court. On 5 July 2019 Commissioner Dickson dismissed the appeal. [1] The applicant then commenced a further appeal, pursuant to s 56A(1) of the Land and Environment Court Act 1979 (NSW), limited to a question of law, to a judge of the Land and Environment Court. [2] On 11 December 2019 Moore J dismissed the appeal. [3]
3. Pursuant to s 57(4)(a) of the Land and Environment Court Act, there is a right of appeal to this Court from a proceeding in the Class 1 jurisdiction of that court, with leave, and limited to a question of law. On 21 February 2020 the applicant filed a summons seeking leave to appeal from the judgment of Moore J. The sole ground of appeal was expressed in the following terms: "His Honour erred in law in the judgment in construing cl 7.9(3)(a) of the Wingecarribee Local Environmental Plan 2010 as meaning that the consent authority, in forming the required state of satisfaction as to the compatibility of the development with the flood hazard of the land, was precluded from having regard to a proposed flood mitigation work which would be carried out prior to the development, but after the date of grant of consent."
4. The issue therefore turns on the proper construction of cl 7.9(3)(a) of the Wingecarribee Local Environmental Plan 2010 (Wingecarribee LEP), dealing with flood planning. It is convenient to set out cl 7.9 in full: 7.9 Flood planning (1) The objectives of this clause are as follows - (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to - (a) land that is shown as "Flood Planning Area" on the Flood Planning Area Map, and (b) other land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development - (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) will not be likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause has the same meaning as it has in the NSW Government's Floodplain Development Manual published in 2005, unless it is otherwise defined in this clause. (5) In this clause - flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metres freeboard.
5. The following propositions were not in dispute: 1. the proposed development could be carried out with consent; 2. the land the subject of the development was land to which cl 7.9 applied, being a flood planning area depicted on a flood planning area map forming part of the Wingecarribee LEP; [4] and 3. the Commissioner could not have been satisfied that the development was compatible, as at the date of her decision, with the flood hazard of the land.
6. That, it might have been thought, was a sufficient basis in law to justify refusal of the application. However, the applicant contended that the consent authority (in this case the Commissioner) was required to take into account a circumstance which had not yet eventuated but which, if and when it did, would allow the development proposal to satisfy her as to cl 7.9(3)(a).
7. The factual basis of that proposition was as follows. The Loftus Street site is on the eastern side of the main southern railway line. The site encompasses a natural depression which allows stormwater to flow in a westerly direction across the land towards to the railway line. The risk of flooding would be ameliorated if an existing culvert were enlarged to allow better drainage under the railway line. It appears that the authority with control of the railway line, Australian Rail Track Corporation (ARTC), had commenced a process that was expected to lead to the carrying out of works to expand the capacity of the Nerang Street culvert. There was hydrological evidence before the Commissioner that if the culvert were replaced so as to increase the capacity to allow a greater flow of water from the development site under the railway line, the development site would satisfy the gateway of cl 7.9(3)(a).
8. However, the Commissioner found that the hydrologists were unanimous and unambiguous in their conclusion that "the proposed development site cannot be allowed to proceed before the railway culvert upgrade works". [5] She concluded: "[72] When read as a whole I am satisfied that the agreed expert evidence is that, firstly the development cannot be allowed to proceed before the railway culvert augmentation works, and secondly that without the culvert augmentation works the site is unable to be developed in its present form due to the significant flood affectation constraint. Importantly, the experts do not conclude that the implementation of the measures [as set out in the development application] is sufficient to render the development compatible with this flood affectation."
9. The applicant's construction of cl 7.9(3)(a) did not purport to deny that the consent authority was required to be satisfied based on contemporaneous information, but rather the applicant submitted that the assessment required consideration of future events.
10. The term "development", as defined in s 1.5 of the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act), [6] included references to acts, matters or things done in relation to land, including use, subdivision, erection of a building and so on. The definition did not include hypothetical or proposed activities. What was set out in a development application was a concept or proposal. All that could be assessed for compliance with a particular standard or criterion, the applicant submitted, was the work as carried out. Accordingly, what the Commissioner had to be satisfied of was that, when carried out, the development would be compatible with the flood hazard of the land. She should have been satisfied that the development would not be complete until after the culvert had been reconstructed and that, by that stage, compatibility would be established.
11. Such a reading, the applicant submitted, would be consistent with the objectives set out in cl 7.9(1). Those objectives required consideration of the actual development, when carried out, with the state of the land at that point. Ignoring likely changes which will take place prior to completion of the development would, it was submitted, lead to absurd results.
12. The parties accepted that the operation of cl 7.9(3)(a) turned on the language used, read in context and having regard to the apparent purpose of the provision. That did not prevent reliance upon dictionary definitions of words, both in the Court below and in this Court. The applicant relied upon Fowler's A Dictionary of Modern English Usage for the usage of the present tense, inciting a response relying on the first entry for the word "is" in the Macquarie Dictionary. The respondent submitted that "the ordinary meaning identified by the Macquarie Dictionary and by Fowler" both "support the construction adopted by the primary judge." Indeed, a submission of the applicant referring to "the literal meaning of the clause" provoked a response relying upon the Macquarie Dictionary to define "literal".
13. As stated by Herzfeld and Prince, a court "may refer to dictionaries or authoritative reference books to determine the ordinary meaning of English words, but it is not bound by dictionary definitions." [7] They further state: "The purpose of a dictionary is to identify the ordinary meaning or meanings of words, not whether the words of the document bear their ordinary meaning, or some other meaning. Dictionaries will commonly be helpful in identifying the range of possible ordinary meanings of a word. Further, they may assist in identifying whether one meaning is used in ordinary society more commonly than others."
14. One source for their first proposition set out above is Bendixen v Coleman, [8] in which Latham CJ stated: [9] "'Bottle' is an ordinary English word. Reference to a dictionary (Standard Dictionary) shows that it means a vessel for holding, carrying and pouring liquids, having a neck and narrow mouth that can be stopped. There is no difficulty in ascertaining the meaning of the common word 'bottle.'" One may very much doubt that Latham CJ obtained much reassurance from the reference to the dictionary.
15. Herzfeld and Prince also note a lengthy passage in the judgment of Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd. [10] The discussion commences with reference to an early English decision in 1608 in which the judge referred to a dictionary. However, what follows involves a careful analysis as to the pitfalls in relying on dictionaries and the limited assistance they will give unless used with caution.
16. The use of dictionaries in the present case did not reveal much by way of caution. The point may be illustrated by the reference to the passage in Fowler at p 652, relied on by both parties: "present tense The natural and most frequent use of the present tense is in contexts of present time, whether actual (he wants to know now; the door is open) or habitual (Paris is the capital of France; he has his pride; the clock strikes every half-hour). It is also used of past events (a British writer wins the Nobel Prize - newspaper headline) and of future events (when do [= will] you retire?; the Paddington train for Didcot leaves at 9.15pm; term ends tomorrow)."
17. The proposition that use of the present tense "is" can describe a future event tells one virtually nothing about whether it is so used in the Wingecarribee LEP. Indeed, Fowler tends to suggest that one would not expect it to be so used. Further, the proposition that in the question "when do you retire?" do is equivalent to "will" may be doubted. The example is better understood as a contraction of, "when do you presently plan to retire?" Similarly, "the train leaves at 9.15pm" may be a contraction of "the train is presently scheduled to leave at 9.15pm." What is expressed is a present state of affairs, rather than a prediction as to a future event.
18. Returning to the language of cl 7.9(3), the respondent relied on the fact that the drafter had in the one subclause, distinguished between present and future tenses in five separate paragraphs. When used in the present tense, the term "the development" is simply a reference to the proposal for which consent is sought by way of a development application. By contrast, the future tense is used when seeking to identify the likely consequences of that development being carried into effect. In considering an application for consent to a development, there is no inconsistency with the definition in s 1.5 of the Planning Act to identify the development by reference to the proposal.
19. It is important to note that the word "is" is used twice in subcl (3). Its first use is in the chapeau and relates to the state of satisfaction of the consent authority; that usage patently does not refer to some future state of satisfaction. That conclusion is not affected by the fact that the current state of satisfaction may need to have regard to the future consequences of events. The second use of "is" appears in par (a). It is at least consistent to treat both as deliberate uses of the present tense.
20. Further, the present tense is used in identifying (in subcl (2)) the application of the clause: (2) This clause applies to - (a) land that is shown as "Flood Planning Area" on the Flood Planning Area Map, and (b) other land at or below the flood planning level.
21. It would be logical to think that, if subcl (3)(a) is to be read as referring to a development that "will, when carried out, be compatible with the flood hazard of the land", then equally cl (2)(a) should operate with respect to land which will be, when the development has been carried out, shown on the relevant map. But in that case it is likely that the land will no longer be depicted as a flood planning area; subcl (3) would therefore not be engaged and the question of construction of par (a) would not arise.
22. Both the Planning Act and environmental planning instruments required to be considered by the consent authority in deciding whether to grant consent to a development application, pursuant to s 4.15 of the Planning Act, set out criteria which either (i) are to be fulfilled at the time of consent, or (ii) call for an assessment of likely consequences of carrying out the proposed development. Thus, s 4.15(1) provides as follows: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority … and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
23. It is clear that the subparagraphs of par (a) all require consideration of the provisions of documents in existence when the application is considered. Further, the requirement in par (c) to consider the suitability of the site for the development must require an assessment of the site as at the date on which consent is granted.
24. Without seeking to be comprehensive, it must also be necessary to have regard to the threefold classification of development in Div 4.1 of the Planning Act. In the present case, it was common ground that the development proposal constituted development that needed consent pursuant to s 4.2 of the Planning Act. That turned on the fact that the land fell within an area zoned R3: medium density residential. [11] The proper classification of the use (in this case residential) will be a condition of engagement of the power of the Council to consent: Woolworths Ltd v Pallas Newco Pty Ltd. [12] Where a criterion is properly identified as a condition of engagement (or "jurisdictional fact") it is likely to be one which does not engage the kind of evaluative judgment required for the purposes of determining an application on its merits. [13]
25. It is not in dispute that cl 7.9(3) imposes a precondition to the engagement of the authority to consent to the proposal. Such a conclusion is inconsistent with the proposition that the same language requires consideration of the carrying out of the proposal and identification of a time at which it will be complete.
26. Further, to incorporate into the assessment some future evaluative judgment does not conform to the use of the present tense. Not only does it require an implicit use of the future tense, contrary to the express choice of present and future tenses within the clause, but it requires identification of a future time which, as the respondent noted, is uncertain. Indeed, it is uncertain both in the sense that the carrying out of the works may commence the day after consent is granted or some years later, so long as the developer complies with s 4.53(6) of the Planning Act, and it is uncertain as to what stage in the development it is proposed should be reached before the assessment of compatibility with a flood hazard standard is to be undertaken. The applicant actually embraced this proposition.
27. The applicant emphasised the fact that the relationship between the proposed development and the environment, particularly the environment as to flood hazard, is likely to be evolve and change over time. The applicant submitted that this was an external factor which was "not static but is affected by changes to the catchment, the climate, and in this case, by proposed flood mitigation works being the culvert augmentation." [14] To give effect to the objectives of the clause the applicant submitted that "one needs to have regard to the flood hazard of the land when the residential flat building is actually built, occupied and used." [15] That language engages further elements of uncertainty as to the precise stage at which the exercise of assessing compatibility is to be undertaken.
28. The applicant also relied on the alleged absurdity of assuming that cl 7.9(3)(a) speaks in the present tense, requiring a present evaluation of compatibility between a development proposal and a level of hazard. The argument is unpersuasive. First, the exercise is readily carried out and, as the Commissioner noted, the outcome is not in doubt. That is a factor strongly in favour of such a construction. Nor is the result "capricious", to adopt a term used by senior counsel for the applicant. If, as the applicant confidently predicts, the reconstruction of the culvert will be undertaken and must be undertaken before its development can proceed, then its application can be reinstated immediately the work is completed on the culvert. (At least, there was no submission to the contrary.)
29. The previous submission envisaged a future event which will remove an obstacle to progress. An alternative submission put forward an event having the opposite effect, namely rendering an otherwise approvable project subject to a serious risk of flooding as a result of changed conditions arising after the consent was given, but presumably foreseeable at that time. However, as the respondent submitted, passing through the gateway of cl 7.9(3)(a) does no more than allow for the development application to be considered. It must satisfy each of the four remaining conditions in subcl (3) and it must surmount the environmental hurdles otherwise to be addressed pursuant to s 4.15 of the Planning Act.
30. There is a further sense in which the applicant's case fails. What the consent authority was required to assess as against the flood hazard applicable to the site, was "the development" proposed by the applicant. That development did not contain an element by way of mitigation of the risk of flooding, and in particular did not involve any variation of the capacity of the culvert, upon which the applicant sought to rely.
31. In its initial submissions, the applicant, having noted the Commissioner's "finding" that the flood mitigation work would be completed before the proposed development was "carried out", suggested that the judge "appears to have become diverted by a consideration of the fact that the flood mitigation work would also be the subject of a deferred commencement condition." [16] (By "would" the applicant may have meant "could".) The submission continued: "Although such a condition would, it is true, ensure as a matter of law that the proposed development … would not occur until after the flood mitigation work was constructed, the critical matter is that it would not precede the flood mitigation work, as a matter of fact, and not that a condition of consent could be drafted to recognise and legally mandate this fact."
32. There was no finding that the "fact" was indeed a fact. However, to complete the reference to the applicant's submissions, it may be noted that it returned to this point in its reply, stating: [17] "The applicant has never contended that the reference to 'development' on the present facts extends to the culvert upgrade works." The applicant acknowledged that the development referred to in cl 7.9 is that proposed in the development application and was the erection of the residential flat building and associated works.
33. The reason why the primary judge referred to the possibility of a "deferred commencement condition" was simply that, absent such a condition, the development could, legally, proceed the day after consent was granted. If the alterations to the culvert had been part of the development, there is little doubt that a condition providing that the consent would not operate until the applicant had undertaken that work might have been included as a deferred commencement condition under s 4.16(3) of the Planning Act. However, the judge was concerned that, where the flood mitigation works were not within the development proposal, such a condition "might (a) be uncertain in a fashion offending against the decision of the Court of Appeal in Mison v Randwick Municipal Council [18] …; and (b) impermissibly delegate to the ARTC determination of a matter critical to permissibility of the development in a fashion contrary to the decision of the Court of Appeal in Weal v Bathurst City Council. [19] "
34. This was not a "diversion"; it was the identification of a potential mechanism by which the applicant's application might have been able to proceed. It was, as the applicant conceded, unavailable because the construction of the culvert was not part of its proposed development.
35. Similarly, the Commissioner had referred to the possibility of a deferred commencement condition in her reasons at [32]. She had said: "[33] It is the development for which consent is sought (cl 4.12(1) of the EPA Act) that the consent authority must be satisfied is compatible with the flood hazard of the land (cl 7.9(3)(a) of LEP 2010)."
36. Returning to the alleged "fact" as to the ARTC's culvert works, there was no finding of the Commissioner (the sole authority to find facts in this case) that the culvert construction work was being undertaken, nor even that it had been approved by Council. Nor was there any finding as to when the work would in fact be completed. At no stage in her decision was any date mentioned. Accordingly, it was not a "fact" that the culvert augmentation would be completed before the development proposed by the applicant was commenced (or carried out) assuming the consent had been given by the Commissioner on 5 July 2019.