Warnes v Muswellbrook Shire Council

Department of Premier and Cabinet v Hulls [1999] 3 VR 331 CASES CITED: Sutherland Shire Council v Telope Pty Ltd (1994) 85 LGERA 103 Warnes v Muswellbrook Shire Council [2009] NSWLEC 1284

APPELLANT Mr P Clay SOLICITOR LEGAL REPRESENTATIVES: Thompson Norrie RESPONDENT Mr T Robertson SC SOLICITOR Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 Her Honour: This is a s 56A appeal under the Land and Environment Court Act 1979 (the Court Act) against a decision of the Senior Commissioner in Warnes v Muswellbrook Shire Council [2009] NSWLEC 1284 in matter no 08/11287 handed down on 26 August 2009. The Senior Commissioner held that the Appellant's s 97 appeal against the refusal of development consent by Muswellbrook Shire Council (the Council) should be dismissed as the proposed accommodation for construction workers near Muswellbrook did not comply with objective (b) of the (Urban Buffer) Zone (the L2 zone) in the Muswellbrook Local Environmental Plan 1985 (the LEP). That zone is an environmental protection urban buffer zone along the southern and eastern sides of Muswellbrook. The construction workers are to build coal mine infrastructure in the Upper Hunter Valley. Fourteen buildings to house 400 workers were proposed.

2 Under cl 8 of the LEP, the Council must not grant consent to development unless the development is consistent with the objectives of the zone where the development is proposed. The zone objectives for the L2 zone are: (a) to establish around the town of Muswellbrook a protective buffer of an essentially rural character, which will separate the town from future surface mining activity outside the zone and require additional protective measures in the event of expansion of existing mines within the buffer, (b) to accommodate development of a rural character or associated with rural uses, or development which requires a location close to the town of Muswellbrook, provided that development will not adversely affect other development within Muswellbrook or within this zone, and will not be adversely affected itself by mining development outside the buffer, (c) to enable the future construction of a railway and a highway deviation, and to ensure that development does not foreclose these options, and (d) to encourage development that will provide or maintain an appropriate rural setting for the town of Muswellbrook. 3 Additional requirements for approval of development in this zone are found in cl 18 of the LEP.

4 The appeal ground is that that the Senior Commissioner erred in law in misdirecting himself in construing the words "development which requires a location close to the town of Muswellbrook" as contained in objective (b) of the zone objectives for the L2 zone of Muswellbrook LEP 1985. That phrase "development which requires a location close to the town of Muswellbrook" is the only part of objective (b) that is in issue in the appeal. Senior Commissioner's judgment 5 The Senior Commissioner considered two questions when considering objective (b) of the L2 zone in his judgment. Firstly, whether the proposed development was required to be close to a town and, secondly, whether it was required to be close to Muswellbrook. In relation to the first, the definition of require he adopted from the Macquarie Dictionary was "to have need of; need" [128] and from the Oxford Dictionary (Australian edition) "there is need for, it is necessary". At [130] he stated: It is clear to me that, consistent with these definitions and ordinary usage, mere desirability, whether economic or social, is not sufficient. The imperative inherent in the word "requires" is such that, in my view, the applicant needs to demonstrate that it is not practicable or appropriate to locate the proposed development other than close to a town.

6 He considered whether the operation of the proposal required social infrastructure, the provision of services and what the environmental impact from its operation might give rise to if it were not located close to town. He also considered if there was anything concerning the construction of the facility which would be affected if it was not close to a town. After considering evidence before him he concluded that there was no basis to conclude that the proposed facility required a location close to a town. The proposed facility did not satisfy this element of the zone objective and had to be refused (at [143]).

7 The Senior Commissioner then asked himself at [144] that, if wrong in his conclusion that the proposed facility did not require location close to a town, whether it required location close to the town of Muswellbrook rather than any town. He considered whether there was any other town within reasonable proximity given the purpose of the proposed facility near to which the facility could be located as an alternative to Muswellbrook [145]. He considered other towns in adjoining local government areas in his analysis. He concluded at [160] that he was separately satisfied that the Appellant had not demonstrated that proximity to a town can only be satisfied by proximity to the town of Muswellbrook. At [156] he stated that he did not have any information about the zoning in Singleton and the possibility of locating near that town, and notes that the Appellant had the onus of demonstrating that it could not be so located given the test in this zone objective. Appellant's submissions 8 The Appellant submitted that the Senior Commissioner asked himself the wrong question at [130]. The question he should ask himself is what this proposed development required taking into account, for example, that it was intended to connect to the reticulated sewerage system of Muswellbrook. The analysis in [141] of the judgment is incorrect. His approach to "require" is incorrect. Rather, require means "has a need of" not a mandatory imperative of necessity. This approach is supported by Sutherland Shire Council v Telope Pty Ltd (1994) 85 LGERA 103. This incorrect approach to "require" gives rise to an error of law. The Senior Commissioner's construction was not consistent with the provisions in the LEP. This error occurs in relation to the first question the Senior Commissioner posed, whether the facility should be close to a town, and the second question, whether it should be close to Muswellbrook. Council's submissions 9 No error of law is disclosed in the Senior Commissioner's reasoning. His approach to "require" is a practical and commonsense approach given the nature of objective (b). If an error of law is raised by the ground of appeal, no error of law is committed. His construction of "require" is correct, see Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331. Telope should be distinguished as it considers a quite different provision of an LEP dealing with a definition of bulky goods. The decision of the Court of Appeal reflects the particular provisions in issue and provides no precedent for the construction of objective (b) of the L2 zone. Finding 10 As submitted in the Appellant's written submissions, generally a provision in an LEP must be construed in light of its context and purpose, s 33 Interpretation Act 1987. The misconstruction of a provision in a statute, which in this case includes a phrase which includes the word require, can give rise to an error of law. This principle applies to the construction of the provisions of an LEP as was also the case in Telope. Accordingly, failure to properly construe "require" in the phrase "development which requires a location close to the town of Muswellbrook" in objective (b) could give rise to an error of law. 11 For the reasons given by the Council the Senior Commissioner's approach to "require" in objective (b) is correct in the context of the LEP and the objectives of the L2 zone.

12 The decision in Telope is not helpful to the construction of this LEP provision. The facts of that case, concerning a detailed definition of a bulky goods showroom in an LEP, are quite different to the objective (b) provisions in the LEP before me. In Telope Stein J at first instance considered a commonsense approach to the construction of the definition in the LEP led to the conclusion that "require" did not mean "necessity". In the Court of Appeal Gleeson CJ (Mahoney and Clarke JJA concurring) held that there was no error of law in this finding. His Honour refers to the fact that require can have more than one meaning, depending on the context in which it appears.

13 In Hulls, a case relied on by the Council, at issue was the construction of a section of the Freedom of Information Act 1982 (Vic) which stated that if the tribunal in question was of the opinion that the public interest requires access to a document it should be granted. The Victorian Court of Appeal held that "require" in that context suggested "necessity", rather than "need". See [35] of the decision of Phillips JA (Tadgell and Batt JJA concurring).

14 The Senior Commissioner's approach to require in objective (b) is entirely consistent with the objectives of the L2 zone and reflects an appropriate approach to the meaning of require, as identified by him in [130] as whether "it is not practicable or appropriate to locate the proposed development other than close to a town". As submitted by the Council that is not an approach based on an absolute imperative but rather reflects an appropriate approach in the context of a planning instrument of considering whether as a practical matter a development should be located near a town.

15 The question the Appellant argues should have been asked is what are the requirements of this development. As submitted by the Council that a development has needs does not mean that it has a need of locating near Muswellbrook to satisfy them. Such an approach would mean that every development of any kind with the need of a service available in Muswellbrook requires proximity to that town. That would not appear to conform with the objectives of the L2 zone.

16 The Senior Commissioner asked himself the second question of whether the proposed development should be near Muswellbrook in particular, on the assumption that his first conclusion was incorrect. Although the Appellant criticised the second finding of the Senior Commissioner because this was infected by the same error as was made in relation to the first question he posed, I do not agree. He answered this second question on the assumption that the proposed development did require a location close to a town then determined whether the "close to town" location included close to the town of Muswellbrook. In doing so he answered this question by considering whether there was another town in reasonable proximity given the purpose of the facility proposed near to which it could be located as an alternative to a location near Muswellbrook. This approach to construction and then analysis of objective (b) appears to be in conformity with the objectives of the LEP in the L2 zone. It is not correct to say that the incorrect approach taken to the first question is also taken in relation to the second question. There is no error of law in the findings he reaches at [159]-[160] of his judgment.

17 I do not agree with the submissions of the Appellant that what the Senior Commissioner did was ask whether this development, with some changes and adaptations, could be constructed other than near a town rather than focus on and assess the proposal before him. He considered relevant planning matters such as the necessity for connection to a reticulated sewerage system appropriately in his consideration of objective (b) in his analysis.

18 I also do not agree with the criticism of his judgment that he considered sites outside the Muswellbrook local government area in considering other possible towns near which such a facility could be located. Given that the coal mines where the construction workers are to work are located in more than one potential location in the Upper Hunter Valley, it is not apparent that a consent authority is restricted to considering sites only within a particular local government area in determining an appropriate planning outcome. 19 The Appellant is unsuccessful on this appeal. 20 I consider the appeal should be dismissed. The parties agreed the appropriate costs order is that costs follow the event. As the Council has been successful in opposing the appeal its costs should be paid by the Appellant. Orders 21 The Court makes the following orders: 1. The appeal is dismissed. 2. The Appellant is to pay the Respondent's costs of the appeal.

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