Strange & Anor v Kiama Municipal Council

2. The Commissioner erred in law in finding that clause 7 of the Model Provisions, as adopted by Kiama Local Environmental Plan 1996, being the foreshore building line control, did not apply to the proposal.

3. The Commissioner failed to take into account properly, or at all, a relevant matter being whether it was necessary or expedient in the circumstances of this case to alter or abolish the foreshore building line.

4. Alternatively, the Commissioner failed to take into account properly, or at all, a relevant matter being whether it was unnecessary or unreasonable in the circumstances of this case to require strict compliance with the foreshore building line control.

PARTICULARS Clause 7 of the Model Provisions, as adopted by Kiama LEP, is a development standard amenable to SEPP 1. 5. The Commissioner failed to take into account properly, or at all, a relevant matter being the Policy. Alternatively, the Commissioner erred in his application of the Policy. 6. The Commissioner failed to take into account properly, or at all, a relevant matter being, the precedent effect of the proposal.

4. In relation to those grounds I note that ground 5 was not pressed at the hearing by the Council. Grounds 1, 2 and 3 are essentially the same issue. Accordingly, there are three bases on which the appeal is argued by the Council, grounds 1, 2 and 3, which I can deal with together, ground 4 and ground 6.

Legislative framework 5. Clause 5 of the Kiama Local Environmental Plan 1996 (the LEP) adopts cl 7 of the Environmental Planning Assessment Model Provisions 1980 (the Model Provisions). Clause 7 of the model provisions provides: (1) The council may, by resolution, fix a line (in this clause called a "foreshore building line") in respect of any land fronting any bay, river, creek, lake, lagoon, harbour or ocean. (2) A foreshore building line shall, when fixed in accordance with subclause (1), be marked upon a plan or clearly described in the resolution and the plan or resolution shall be available for inspection by the public during the office hours of the council. (3) The council may alter or abolish any foreshore building line, where the levels, depth or other exceptional features of the site make it necessary or expedient to do so. (4) A building shall not be erected between a foreshore building line and a bay, river, creek, lake or lagoon in respect of which the line is fixed.

6. Pursuant to cl 7(1) of the Model Provisions which permit the making of a foreshore building line by the resolution of the Council, Council adopted a 30 metre foreshore building line which applies to the land the subject of this appeal. The existing house on that land is forward of the foreshore building line which has been determined by the Council.

7. At a meeting on 2 October 2001 the Council adopted the Policy in Respect of Building within the Minnamurra River Foreshore Building Line Area (the Minnamurra Foreshore Building Line Policy) which was to be used for the assessment of applications involving buildings within the foreshore building line.

Grounds 1, 2 and 3 Council's submissions 8. In par 30 of the Commissioner's judgment he states that: … I accept Mr Robson's submission that this proposal does not involve the erection of a building forward of the FBL and therefore the provision is not offended.

9. The Council argued that this conclusion by the Commissioner constitutes an error of law which significantly affected the Commissioner's reasoning and decision. Under the Environmental Planning and Assessment Act 1979 (the EP&A Act) building is defined to include "a part of a building, and any structure or part of a structure" . Further, under s 4(2)(b)(i) of the EP&A Act, the erection of a building includes reference to "the rebuilding of, the making of alterations to, or the enlargement or extension of, a building" . Pursuant to s 34 of the EP&A Act, "[e]xpressions used in an environmental planning instrument shall, unless the contrary intention appears, have the same meanings respectively as they have in this Act" .

10. Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 states that the question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law, the ordinary meaning of a word or its non-legal technical meaning is a question of fact, and the meaning of a technical legal term is a question of law. The Council relied on this case to argue that the Commissioner was in legal error in his decision.

11. The Council argued the relevant meaning of building to apply was contained in the EP&A Act. Applying that meaning to the facts as found by the Commissioner, the proposal clearly involved the erection of a building forward of the foreshore building line. Accordingly, the Commissioner erred in par 30 and committed an error of law in doing so. The Commissioner therefore further erred when he failed to apply foreshore building control made by the Council pursuant to cl 7 of the Model Provisions.

12. As the Model Provisions applied, the only basis on which the foreshore building line could be varied was under cl 7(3) of the Model Provisions which provides that "[t]he Council may alter or abolish any foreshore building line where the levels, depth, or other exceptional features of the site make it necessary or expedient to do so" . Because of the Commissioner's findings in par 30, he did not apply cl 7(3) of the Model Provisions and accordingly made no finding so that his decision must be vitiated.

Applicant's submissions 13. The Applicant's counsel argued the Commissioner was entitled to find on the evidence that that which was proposed did not constitute the erection of a building in circumstances where it was the intent, so it was argued, of the Council's approach to stop new development below the foreshore building line with such new development practically considered was the erection of a new building. The Commissioner's approach, it was said, was practical and reasonable from the conduct of the matter before him in relation to the implementation of both the foreshore building line resolution and the Minnamurra Foreshore Building Line Policy. Accordingly the Commissioner had made no material error of law.

14. It was said that, even adopting the Council's definition of building, there must be an element of fact or degree involved and that the foreshore building line was to be applied flexibly.

15. The Commissioner found that from a practical perspective the proposal was otherwise fully provided for in the Minnamurra Foreshore Building Line Policy and the Commissioner did apply his mind appropriately to the matter.

Finding on grounds 1, 2 and 3 16. I accept the Council's argument that the Commissioner erred in finding that the development in question did not involve the erection of a building forward of the foreshore building line. The provisions of the EP&A Act are clear in relation to the meaning of building, which must apply pursuant to s 34 of the EP&A Act to the LEP. In consequence I accept the model provisions as adopted by the LEP and foreshore building line adopted by Council pursuant to these, must have applied to the proposal.

17. It follows, as is identified in ground 3, that the Commissioner failed to take into account properly or at all the issue of whether it was necessary or expedient in the circumstances of this case to alter or abolish the foreshore building line as provided for in cl 7(3) of the Model Provisions.

18. Is this error material? An error of law will only vitiate a Commissioner's decision if it has materially affected that decision: Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275 at 280.

19. In this case I note the Commissioner goes on to apply the Council's Minnamurra Foreshore Building Line Policy. That is clear from par 31 to 36 of the judgment of the Commissioner where he considered the policy in relation to firstly, coastal processes and, secondly, building impacts.

20. The finding in par 30 of the decision was incorrect and therefore the only way to vary the foreshore building line was in accordance with cl 7(3) of the Model Provisions. This would require a finding by the Commissioner if he wished to alter or abolish the foreshore building line, to find circumstances where the levels, depth or other exceptional features of the site make it necessary or expedient to do so. Obviously, because the Commissioner did not consider that this clause had any relevance, there is no reference to this in his judgment and no finding on the matters in cl 7(3). I therefore consider that the error in par 30 is material in the context of the matter and is sufficient to vitiate the Commissioner's decision.

Ground 4 21. The wording of the ground of appeal does not make completely clear the precise nature of the argument presented in support of ground 4. As I understand it, the Council's case is that it was open for the Commissioner to vary the foreshore building line if cl 7(3) was applied or there was a successful SEPP 1 objection lodged because the foreshore building line could be a development standard.

22. I was referred to the transcript of the hearing before the Commissioner. This disclosed that there was no submission made to the effect that the foreshore building line is a development standard before the Commissioner and therefore there was no submission made on whether it was amenable to a SEPP 1 variation. Although there was evidence readily available to present to the Court at the merit hearing by the Applicant to support a SEPP 1 objection, such an objection having been prepared and forming part of the evidence of the Applicant's expert, it was not relied on as this matter was certainly not raised before the Commissioner by the Council.

23. The Applicant argued that because the SEPP 1 was not raised as an issue at the hearing it cannot be raised now in this appeal. I was referred to numerous judgments by the Applicant's counsel, particularly Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 47 NSWLR 631, University of Wollongong v Metwally (1984) 158 CLR 447 and Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5 in support of that contention.

24. The Council raised the issue of whether the foreshore building line is a development standard for two reasons. Firstly it accepted that it was not open to raise a new issue in the appeal. Counsel for the Council stated that it had raised ground 4 to essentially show that if it succeeded on grounds 1 to 3, the Commissioner's decision could not be saved on the other possible basis for varying the foreshore building line, namely a SEPP 1 objection. This requires that it was open to consider the foreshore building line as a development standard.

25. Secondly, the Council submitted I should decide whether the foreshore building line is a development standard within the context of this LEP because it may be relevant when the matter was referred back to the Commissioner.

Finding on ground 4 26. I accept the Applicant's arguments that this matter was not raised in the hearing before the Commissioner. It is not appropriate that it be raised before me now. I do, however, acknowledge that the Council was not by its first submission in support of this ground seeking to raise a new issue, but was seeking to show that the Commissioner's decision could not be saved on another basis, that is, a SEPP 1 objection.

27. I do not intend to adopt the course urged by the counsel for the Council in his second argument, namely that I should make a decision now as to whether the foreshore building line adopted by the Council is development standard. Given that there was apparently no issue in this regard raised in the merit hearing by the Council, nor was this dealt with in the Commissioner's judgment, I do not think it is appropriate that I decide this issue now in the context of the s 56A appeal before me.

Ground 6 28. The Council argued that submissions were made to the Commissioner about the precedent effect any decision to vary the foreshore building line could have. This was said to be an error relying on Goldin v Minister for Transport (2002) 121 LGERA 101. There was no reference to the submission or that decision in the judgment.

29. The Applicant argued that Goldin is not authority for a submission that because the Council makes the suggestion there may be precedential effect, there is a failure if the Commissioner does not embrace that suggestion. There is no legal error committed in that circumstance.

Finding on Ground 6 30. My finding on ground 6 is that I accept the Applicant's submissions that there was no legal error and the Council does not succeed on this ground.

31. As the Council has been successful in relation to grounds 1, 2 and 3 and I consider the error is material, it is necessary the matter be remitted to Commissioner Hussey for determination in accordance with this decision.

Orders 32. The Court orders that: 1. The decision of Commissioner Hussey made on 24 January 2003 is set aside. 2. This development application is remitted to Commissioner Hussey to be determined in accordance with this decision. 3. The Applicant is to pay the Council's costs of this appeal. 4. The Applicant is to have the benefit of a certificate under the Suitor's Fund if so entitled. 5. Orders 3 and 4 are to come into force in 7 days from the date of these orders unless there is further conduct by the Applicant. 6. The matter is listed for callover before the Registrar on 17 June 2003.

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