Michael Brown Planning Strategies v Wingecarribee Shire Council

The appeal

1. On 15 July 2019, the Applicant filed this appeal against the Commissioner's decision. Such an appeal is permitted, on a limited basis, by s 56A of the Court Act, a provision in the following terms: 56A Class 1, 2, 3 and 8 proceedings - appeals to the Court against decisions of Commissioners (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. (2) … (3) …
2. As can be seen, such appeals are confined to ones of questions of law. In this instance, although the Applicant relies on four separate grounds of appeal (later set out), they all, in effect, have a common foundation in the allegation that the Commissioner misinterpreted the test that she was mandated to apply by the relevant element of cl 7.9 of the LEP.
3. It is not disputed by the Council that, if established, such an error of construction of the engaged provision of the LEP would amount to an error of law in a fashion engaged for the purposes of s 56A of the Court Act.

The relevant provision of the LEP

1. As I have earlier noted, the sole provision of the LEP engaged for the purposes of this appeal is cl 7.9 Flood Planning. There is no dispute that the clause applies to the site.
2. The clause is in the following terms: 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.

The grounds of appeal

1. The Applicant relied on four grounds of appeal. These grounds (particulars omitted) are set out below: 1 The Commissioner erred in law by applying an improper construction of clause 7.9(3)(a) of the Wingecarribee Local Environmental Plan 2010 (LEP), to the facts including at [59], [75]-[77] of the Judgment, namely, that the clause, by requiring the consent authority to be satisfied that the development is compatible with the flood hazard of the land, precluded the Commissioner from having regard to a proposed flood mitigation measure which was not part of the development application, but which was to be carried out prior to the development the subject of the development application being carried out, because it had not been built as at the date of the decision as to Whether or not to grant consent. 2 The Commissioner erred in law at [75] by disregarding a mandatory relevant matter in her consideration of the question posed by clause 7.9(3)(a) of the LEP, namely the "flood hazard of the land", as it would be at the time the development the subject of the development application would be carried out. 3 The Commissioner's decision is vitiated by legal unreasonableness and legal irrationality in that the Commissioner excluded from her consideration, in arriving at an answer to the question posed by clause 7.9(3)(a) of the LEP, the flood mitigation work constituted by the railway culvert enlargement, notwithstanding: a. the Commissioner's finding (at [75]) that the railway culvert enlargement would be built before the development the subject of the development application was carried out; b. the evidence before the Commissioner from the hydrological experts for both parties that the railway culvert enlargement (and aspects of the development itself) would together reduce site's flood affectation to an acceptable level to allow the development to proceed; and c. the Commissioner's preparedness to consider future changes brought about to the flood affectation of the land by the carrying out of the development itself (at [69] and [72], for example). 4 The Commissioner erred in law at [77] in finding that the opinion in clause 7.9(3)(a) of the LEP was one she was unable to be formed, as the finding was based on no evidence.
2. As can be seen, critical to the appeal is the construction of cl 7.9(3)(a) of the LEP. In reality, each ground pleads differently expressed versions of the relevant interpretation point. If the Commissioner's interpretation is to be preferred (as I have concluded it should), all grounds must fail.

The evidence

1. The material to which I was taken during the course of the hearing of this appeal was contained in three electronic folders of evidence - these being labelled as Folders 1, 2 and 3-5. Although no directions had been made for the trial to proceed on such a paperless basis, this did not act as an impediment as I was able to access all relevant material on a computer screen in the courtroom.
2. Only one document, in physical form, needed to be tendered, that being a letter dated 27 May 2019 from ARTC (the Australian Rail Track Corporation) to the Council. Given that the confines of the dispute before the Commissioner, and in these proceedings (particularly), is a limited one dealing with interpretation of the engaged elements of cl 7.9 of the LEP, it is unnecessary to refer to any of the background material to which I was taken electronically.

Representation

1. Mr Ireland of counsel appeared for the Applicant before the Commissioner and before me. Mr Leggatt SC appeared for the Council before me (although not appearing before the Commissioner at first instance).

The factual context of the contest

1. An extremely limited factual framework provides the background to the Commissioner's decision and to matters engaged by this appeal. Those relevant matters are: 1. The site is in a floodway which, if a relevant flood event occurs, would inundate the site in a fashion which would result in a flood hazard level which would act to prohibit the development; 2. The bottleneck to the dissipation of floodwaters in these circumstances is the limited capacity of the culvert under the Sydney-Melbourne railway line, a short distance to the west and downstream of the site; 3. There is a proposal for a significant augmentation of the capacity of this culvert. That augmentation, when effected, will alter the flood risk categorisation of the site in a fashion that would not act as an impediment to the granting of development consent to the Applicant's proposed development. There appears to be agreement from the ARTC about the desirability (if not desirability, at least appropriateness) of the carrying out of the culvert augmentation works; 4. The ARTC has commenced a process (evidenced by Exhibit 1) that is expected, subject to satisfaction of the ARTC with the proposed design that has been submitted, to lead to approval of the proposed culvert augmentation; 5. Augmentation of the culvert, if approved, could take place in the foreseeable future (any differences in assessment as to what would be that time being irrelevant for the purposes of these proceedings); and 6. The Applicant's development application for the site, however, did not seek approval for, or consent to construct, the proposed augmentation works to expand the water dissipation capacity of the culvert under the railway line.
2. Had the Commissioner been minded to approve the development if no other merit issues remained as impediments (there being, for example, a number of objectors who gave evidence during the course of the site inspection raising issues other than the flood safety issue), it was proposed that the question of the necessity for the culvert augmentation works was capable of being addressed by a deferred condition of consent, a proposed condition in the following terms: 1 Proof of completion of works to upgrade/ enlarge railway culverts to three box cells Written advice, provided by ARTC, confirming completion of works to upgrade/ enlarge railway culverts to three box cells within the railway corridor Lot 501 DP 1204712 to its satisfaction and to the design specifications set out in the Lindsay Dynan 'Bowral Culvert Duplication' plans (dated 11.12.14) shall be submitted to the satisfaction of Council within twelve months of the granting of consent.
3. The permissibility or otherwise of utilising this condition as the appropriate method of resolving this impediment to granting consent to the proposed development provides the foundation for this appeal.

Matters not requiring to be addressed

1. It is to be observed that, at the commencement of the appeal hearing before me, I had raised with Mr Ireland my concern that the terms of the proposed deferred commencement condition might (a) be uncertain in a fashion offending against the decision of the Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison); 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 (2000) 111 LGERA 181; [2000] NSWCA 88 (Weal).
2. Given that I have reached the conclusion that the Commissioner was correct in her interpretation of the relevant provision of the LEP acting as a barrier to consent in a fashion unable to be overcome by the proposed deferred commencement condition, it is unnecessary for me to address those concerns further.

The Commissioner's decision

1. The findings and conclusion setting out the Commissioner's reasoning in reaching the view that a proper construction of cl 7.9 of the LEP mandated refusal of the Applicant's proposed development is set out in her decision between [60] and [77]. It is appropriate to set out the portion of her decision containing her findings in its entirety. She wrote: 60 The Applicant has prepared, through its consultant Hydrostorm Pty Ltd a number of flood assessments of the subject site. The November 2018 report states that: "… the provision of (a) higher capacity railway culvert reduces flood levels east of the railway under the proposed development conditions. The flood levels reduce by 0.28m west and north of the proposed development. The flood levels are lowered over a large area with potential benefit to several properties within the flood plain" (Ex D) 61 As part of the preparation of the November 2018 report, Hydrostorm were asked by the Respondent to provide a 'Flood Impact Study' demonstrating the flood risk if the development was to proceed without the augmentation of the culverts. Figure 16-19 of the November 2018 report assesses the flood risk of the development pad, on which the residential development is to proceed. It is nominated as a 'low-risk precinct' under this scenario. 62 As part of the November 2018 report, Hydrostorm provides an assessment and recommendations against Council's 'Flood Planning Matrix'. The report confirms the following: • the habitable and non- habitable areas (such as the common room) have floor levels that are above the1% Annual Exceeedance probability (1%AEP) flood level, with an additional 500mm freeboard. • that flood compatible materials and components are to be utilised for parts of the development that are exposed to potential flooding. • entry to the enclosed, or basement car parking, is at 1%AEP flood level, plus 500mm freeboard to limit the ingress of water to these areas. 63 Further, the November 2018 report recommends an audible and visual alarm system and appropriate signage to warn of the need to evacuate from the basement to habitable floors in a flood event, noting that the proposal is the shelter in place. 64 Finally, the report notes that the habitable floor levels for the whole of the development are above the PMF flood level. 65 The flood assessment was rerun and updated to account for climate change (refer paragraph [5]). The Final Flood Report notes that to account for the effects of climate change the data in the Brewsher Report was altered to increase rainfall intensities by 20% to represent the future climate. The Final Flood Report summarises the resulting changes as follows: • the 1%AEP flood levels would increase by 0.17m upstream of the railway culvert under existing conditions (i.e. without the proposed development) • comparison of the 1%AEP climate change flood levels for both existing and developed conditions provides the incremental impact of the proposed development. The modelling results show that the reduction in flood levels achieved through the proposed development under the current climate will remain for the future climate. • the proposed development remains flood free under the climate change conditions and access to Meryla Road remains open in a 1%AEP event. 66 It is clear in both the November 2018 report (refer pg 5 Sections 2 and 2.1) and the Final Flood Report (refer pg 7 Section 8) that a reference to the 'proposed development' in these reports includes a reference to the augmentation of the railway culverts, resulting increase in capacity. This assessment is of the implementation of the proposed development for which consent is sought plus the completion of the agreed conditions. 67 The exception is Figures 16-19 of the November 2018 report. These are the evidence of the flood affectation of the land with the proposed development only, excluding the works to the railway culvert. 68 I note that the architectural design of the proposed residential flat building has set the habitable floor levels above the 1%AEP flood level, with 500mm freeboard. The civil design for the site includes the creation of a fill platform, which is the location of the proposed buildings, through the importation of some 2000 cubic metres of material (Ex D plan: 160103E1.06). The November 2018 report assesses this filled pad as a 'low-risk precinct', without the amplification of the culverts (refer paragraph [61]). 69 The above items are typically the parameters that would be given weight by hydrology experts in determining whether a particular development is compatible with the flood affectation of the land or appropriate on its merits. 70 However, these parameters are contrasted with the agreed evidence of the hydrologists, reproduced at paragraph [41] who state, unambiguously that: the proposed development site cannot be allowed to proceed before the railway culvert upgrade works (Exhibit 9). 71 Further, in crosss-examination it was clarified by Mr Rehman that in agreeing with the following statement, he was including the completion of the railway culvert augmentation works as having been completed: "As the proposed development area remains flood free in the 1% AEP climate change flood, the site is still considered to be in a 'medium flood risk precinct', hence the proposed development is compatible with the site flood hazard in accordance with the BDCP." (Ex 9) 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 at paragraph [68] is sufficient to render the development compatible with this flood affectation. 73 The Macquarie dictionary defines 'compatible' as follows: compatible adjective 1. capable of existing together in harmony. 2. capable of orderly, efficient integration with other elements in a system. 74 In relation to the interpretation of cl 7.9(3)(a) of LEP 2010 I prefer the submission of Mr Farrell that the subclause requires the consent authority to be satisfied, at the time of determination, that the development is compatible (capable of existing in harmony) with the flood characteristics of the land. I accept his submission that the use of the present tense, in the context of the remaining subclauses appears a deliberate choice in the drafting of the provision. 75 I accept the submission of Mr Ireland that the approval of the development application will self-evidently result in the augmentation works to the culvert occurring, prior to the development itself on the basis of the terms of the agreed deferred commencement condition. However, I am not persuaded that I can incorporate these works in my consideration of whether the development satisfies the precondition in cl 7.9(3)(a) of LEP 2010. My reasoning is as follows: (1) They do not form part of the 'development' for which consent is sought, and to which cl 7.9(3)(a) is directed, but rather form a condition of such a determination. At s 4.16(1)(a) of the EPA Act, it is clear that the consent authority in determining an application by the grant of consent can do so either unconditionally or subject to conditions. The consideration and determination of a development application seeking consent to carry out development turn on the development the subject of the application. A condition of consent, whether a deferred commencement consent or not, is imposed on that development. (2) I accept that the information before the Court is sufficient to address the submissions Mr Ireland has made in relation to Hoxton Park Residents. However, a merit assessment of the application cannot proceed in the circumstances where a precondition to consent is not met (refer paragraph [25]). (3) Similarly, whilst it is clear that on the flood modelling the completion of the development would result in a public benefit of a reduction in flood affectation for some proximate properties, cl 7.9(3)(a) is a precondition to the exercise of the power to determine an application. These positive impacts of the development do not go to the question of the compatibility of the development with the flood hazard of the land. 76 I am persuaded that given the terms of cl 7.9(3)(a) of LEP 2010, a condition of consent, deferred or otherwise, may work to improve the flood characteristics of the land (as the deferred commencement condition clearly would in this case), but can't be relied on to make it compatible (in this case the test of the precondition). 77 Giving appropriate weight to the expert evidence I am unable to form an opinion of satisfaction that the development is capable of existing in harmony with the flood hazard of the land. Given I am unable to be satisfied that the development is compatible with the flood hazard of the land the application must be refused.

The Applicant's interpretation of cl 7.9(3)(a)

1. For the Applicant to succeed in this appeal, the Applicant's interpretation of cl 7.9(3)(a) of the LEP must not be read in the unadorned, present tense fashion adopted by the Commissioner but must be read as if the drafter of the provision intended that it was appropriate, in circumstances such as these, to read the provision as if in the following terms: Will the development, after it has been carried out, be compatible with the flood hazard as it will exist after works, the subject of the deferred development condition, have also been carried out; and

The Applicant's submissions

1. A deal of the time taken by Mr Ireland, in his comprehensive oral submissions (and also addressed succinctly in his written submissions), was taken up with an interaction with me concerning Mison and Weal. As I have earlier noted, given my overall conclusion that the interpretation adopted by the Commissioner of the effect of cl 7.9(3)(a) is correct, I need not address those matters further.
2. Without meaning any disrespect to Mr Ireland, the propositions advanced for the Applicant can be summarised simply without the necessity for lengthy recourse to authority. The Applicant's position is: 1. The site is appropriately zoned for the proposed development and it is permissible; 2. Although not an entitlement, there is a broad presumption that permissible development will be approved unless there is a substantive impediment which necessarily precludes such approval; 3. Clause 7.9(3)(a) does not constitute such an impediment; 4. This is because the otherwise arising barrier to approval caused by the flood hazard presently existing for the site is capable of being overcome by the proposed deferred commencement condition; 5. Deferred commencement conditions are expressly provided for by s 4.16(3) of the Environmental Planning and Assessment Act 1979 as an appropriate method of permitting approval of a development in circumstances where some further necessary steps need to be taken before the granted development consent can commence; 6. The Environmental Planning and Assessment Regulation 2000 contains, in cl 95, the requirements for deferred commencement conditions and the proposed deferred commencement condition is compliant with this provision of the Regulations; and 7. It would be entirely artificial to read cl 7.9(3)(a) of the LEP in a literalist sense as construed by the Commissioner and now supported by the Council.
3. Adopting that chain of reasoning, Mr Ireland submitted that the conclusion reached by the Commissioner was not one available to her - leading to the necessary consequence that the appeal should be upheld and the matter return to the Commissioner for her determination in light of the validity of the conclusion he proposed that I adopt.
4. Mr Ireland also relied on the second of the objectives of cl 7.9, an objective set out in cl 7.9(1)(b), an objective in the following terms: b) to allow development on land that is compatible with the land's flood hazard, taking into account projected climate change,
5. Mr Ireland submitted that the objective, for the first portion of its terms, containing a temporal expression identical to the form of cl 7.9(3)(a), meant that the drafter had envisaged it was appropriate to read the words in the here contested element as capable of expansion. He submitted that, if to be construed in the narrow fashion proposed by the Commissioner and now supported by the Council, it would not be permissible for the Council to take into account the anticipated future incremental changes to flood risk that would arise from climate change in the fashion envisaged by the objective. This, he submitted, would lead to an objective incapable of satisfaction if the Council's reading of cl 7.9(3)(a) was adopted.

The Council's submissions

1. Mr Leggatt's submissions on behalf of the Council were concise. In essence, they were that the choice of tense by the use of the word "is" in cl 7.9(3)(a) was obviously a deliberate one by the drafter of the clause.
2. This, he submitted, is demonstrated to be the position because of the structure of the overall requirements of cl 7.9(3). This structure mandated satisfaction of all of the preconditions contained in it, it being drafted in the conjunctive rather than the disjunctive. A number of the other elements of the clause (earlier set out at [11]) use the word "will" as their future operative temporal indicator and this is to be contrasted with the use of the present tense in the contested element.
3. Adopting any alternative approach to construction of the contested provision would involve an artificial and forced interpretation of it, an interpretation that would be contrary to authority on how such instruments are to be read.

Consideration

1. That which I am required to determine in these proceedings is, for the reasons earlier explained, of confined compass. It is a matter of interpretation of the word "is" in the composite "is compatible" in cl 7.9(3)(a) of the LEP. Although trite to be said, such questions of interpretation involve an appreciation of the text in the context in which it is used.
2. I have earlier set out the four grounds advanced for the Applicant as to why the appeal should be upheld and the matter remitted to the Commissioner for further consideration.
3. Ordinarily, where four separate grounds of appeal are pleaded, it would be appropriate to address each of those grounds separately. However, in this instance, all four bases of objection to the Commissioner's conclusion must fail if the Commissioner's interpretation of cl 7.9(3)(a) is correct.
4. For the reasons I now set out, I am satisfied that the Commissioner's interpretation of the provision is correct and acts as an insurmountable barrier to approval of the Applicant's proposed development.
5. The starting point for interpretation, in circumstances such as these, must necessarily be the oft-cited passage, at [69] to [71], of the plurality of the High Court in Project Blue Sky v ABA [1998] 194 CLR 355; [1998] HCA 28. The passage is in the following terms (footnotes omitted): 69 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". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. 70 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 meaning 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". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
6. For present purposes, I need to consider whether or not the expansive interpretation proposed by the Applicant is appropriate or, in a "text in context" sense, the simple and unadorned reading of the provision proposed by the Council is to be preferred.
7. Although the High Court has also approved the proposition that there may be occasions when a proper contextual understanding of any instrument, such as this LEP, might appropriately be read as if additional words were incorporated in it (Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9), those circumstances are restricted.
8. The particular relevant restriction here applicable is that there must be some necessity arising from the terms of the existing provision which, if read literally in the overall relevant context of the instrument (in this case, the totality of cl 7.9), a perverse and illogical result would be brought about.
9. I am unable to accept that such an exception to adopting a literal reading of the provision is appropriate.
10. Although addressing an entirely different provision in the Willoughby Local Environmental Plan 2012, the remarks by Preston CJ concerning that provision are equally here applicable. His Honour said, in DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 173, at [23] and [24], as follows (citations omitted): 23 This is not a case "where the drafter has been less than fastidiously precise in his or her choice of language", so that it might be appropriate "to give rather less weight to precise textual considerations": … The draftsperson has been precise in the choice of language in cl 4.1(4) of WLEP. 24 … Second, the occurrence of those consequences does not lead to the conclusion that the draftsperson could not have intended the clause to have such an operation.
11. To read cl 7.9(3)(a) in the fashion proposed for the Applicant (as earlier set out) would require an entirely unnecessary and forced reading of the provision in its context.
12. The submission on behalf of the Council that a reading of the full range of the necessary preconditions of satisfaction in cl 7.9(3) makes it clear from the contrasting elements in it that the use of the present tense was a deliberate choice made by the drafter of the provision. For these reasons, at the level of generality advanced on behalf of the Applicant, the appeal must fail.
13. A more confined submission was also made, on behalf of the Applicant, that the second objective in cl 7.9(1)(b) provides a specific signpost to the conclusion that the interpretation advanced by the Applicant is to be preferred also requires to be addressed.
14. I am unpersuaded of the validity of Mr Ireland's submission founded on the second of the objectives in cl 7.9 of the LEP. The words at the end of the objective have the effect of adding a dimensional element to the calculation of the relevant flood hazard. It merely, by this dimensional element, enables a present calculation to be made of known scientifically projected effects of climate change, for broad policy reasons, in the approach to be taken to flood assessment. It is not to be regarded as permitting as mandatory some broad and unconstrained reformulation of cl 7.9(3)(a) in the fashion that would be the necessary consequence of the approach proposed on behalf of the Applicant in these proceedings.
15. The consequence of the foregoing is that there is no basis upon which the appeal could be upheld and it must be dismissed.

Costs

1. Costs in appeals such as this ordinarily follow the event unless there is some reason to depart from that conventional position. In this instance, there is no such reason. It therefore follows that the Applicant should pay the Council's costs of the appeal as agreed or assessed.

Orders

1. It follows from that which I have set out above that the orders of the Court are: 1. The appeal is dismissed; 2. The USB stick containing the Evidence Folders is returned; 3. Exhibit 1 is returned; and 4. The Applicant is to pay the Respondent's costs as agreed or assessed.

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: 12 December 2019