Whittaker v Northern Beaches Council

Relevant Planning Controls

The Land is zoned R2 - Low Density Residential pursuant to the provisions of the PLEP: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a limited range of other land uses of a low intensity and scale, compatible with surrounding land uses. 2 Permitted without consent Home businesses; Home occupations 3 Permitted with consent Bed and breakfast accommodation; Boarding houses; Boat sheds; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Exhibition homes; Group homes; Health consulting rooms; Home-based child care; Home industries; Jetties; Places of public worship; Respite day care centres; Roads; Secondary dwellings; Veterinary hospitals; Water recreation structures 4 Prohibited Any development not specified in item 2 or 3
Development for the purposes of seniors housing is not specified in item 2 (permitted without consent) or item 3 (permitted with consent) of the zoning table, and therefore, falls within item 4 (prohibited) being development not specified in item 2 or 3.
The site is partly mapped as a "geotechnical hazard" under the PLEP. The operative clause, cl 7.7 - headed "Geotechnical hazards" - provides that the clause applies to land identified as a "Geotechnical Hazard H1" or "Geotechnical Hazard H2" on the PLEP's Geotechnical Hazard Map.
The map clearly shows that the front portion of the site and part of the adjoining road reserve of Central Road is a "Geotechnical Hazard H2" and that therefore part of the site falls within the "H2" mapped category as designated by the letters "AE" under the PLEP:
The PLEP does not explain the difference between land mapped "H1" as opposed to "H2", but for present purposes any difference is immaterial.
Whittaker accepts that part of the development is proposed to be carried out on an area identified as "Geotechnical Hazard H2" on the Geotechnical Hazard map of the PLEP, and therefore, is subject to the provisions of cl 7.7 of the PLEP.
Clause 7.7 of the PLEP states as follows: 7.7 Geotechnical hazards (1) The objectives of this clause are to ensure that development on and susceptible to geotechnical hazards: (a) matches the underlying geotechnical conditions of the land, and (b) is restricted on unsuitable land, and (c) does not endanger life or property. (2) This clause applies to land identified as "Geotechnical Hazard H1" and "Geotechnical Hazard H2"on the Geotechnical Hazard Map. (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider the following matters to decide whether or not the development takes into account all geotechnical risks: (a) site layout, including access, (b) the development's design and construction methods, (c) the amount of cut and fill that will be required for the development, (d) waste water management, stormwater and drainage across the land, (e) the geotechnical constraints of the site, (f) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless: (a) the consent authority is satisfied that the development will appropriately manage waste water, stormwater and drainage across the land so as not to affect the rate, volume and quality of water leaving the land, and (b) the consent authority is satisfied that: (i) the development is designed, sited and will be managed to avoid any geotechnical risk or significant adverse impact on the development and the land surrounding the development, or (ii) if that risk or impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that risk or impact, or (iii) if that risk or impact cannot be minimised - the development will be managed to mitigate that risk or impact.
Because the proposed development is prohibited under the PLEP, Whittaker seeks consent for the development pursuant to the SEPP on the basis that seniors living is permissible under that instrument.
Clause 4(1)(a) of the SEPP relevantly describes the land to which the SEPP applies: 4 Land to which Policy applies (1) General This Policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if: (a) development for the purpose of any of the following is permitted on the land: (i) dwelling-houses, (ii) residential flat buildings, (iii) hospitals, (iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries…
Clause 4(6) of the SEPP identifies the land to which the policy does not apply, namely and relevantly, land identified in Sch 1 ("Environmentally sensitive land"): (6) Land to which Policy does not apply This Policy does not apply to: (a) land described in Schedule 1 (Environmentally sensitive land)…
"Environmentally sensitive land" is described in Sch 1 of the SEPP as (emphasis added): Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions: (a) coastal protection, (b) conservation (but not land identified as a heritage conservation area in another environmental planning instrument), (c) critical habitat, (d) environment protection, (e) open space, (f) escarpment, (g) floodway, (h) high flooding hazard, (i) natural hazard, (j) (Repealed) (k) scenic (but not land that is so identified if: (i) the land is within a residential zone in which development of two storeys or more in height is permitted, or (ii) an adjacent residential zone, also identified as scenic, permits development of two storeys or more in height), (l) water catchment, (m) natural wetland. Land shown cross-hatched on the bush fire evacuation risk map.

A "Geotechnical Hazard" is Not a "Like Description" of a "Natural Hazard"

Neither of the terms "geotechnical hazard" nor "natural hazard" are defined in either environmental planning instrument.
Consistent with the principles of construction articulated above, a textual approach is to be followed in determining whether the site can be categorised by reference to a "like description" of land itemised in Sch 1 of the SEPP (see Punnett at [13] and Pepperwood at [36]-[37]).
The Council submitted that, consistent with the approach adopted by the Court in Druitts, because State environmental planning policies (the SEPP) prevail over local government plans (the PLEP), a construction which promoted the purpose or objective of the SEPP was to be preferred.
In this regard, the Council relied upon cl 14 of the SEPP which provides that the objective for allowing development for seniors housing under the SEPP is: 14 Objective of Chapter The objective of this Chapter [Chapter 3 Development for seniors housing] is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age.
Furthermore, the planning objective or purpose of cl 4(6) and Sch 1 of the SEPP was to ensure that fundamentally unsuitable land, by reason of its environmentally sensitive nature, remained subject to the land use table and permissibility controls contained in the local environmental plan as opposed to the statewide application of the SEPP.
The exclusion of "environmentally sensitive land", including land identified by "natural hazard" or by "like description" a "geotechnical hazard", had to be read in light of this purpose. This purpose was best served by assigning a broad definition to the expression "natural hazard", which focused on any occurrence in nature (that is, the land) that may make the land unsuitable to seniors housing, rather than focusing on whether the cause of the condition of unsuitability was man-made or not.
According to the Council, a "natural hazard" includes any circumstance where there is some instability in the land irrespective of whether it has been caused by human intervention or not. A "natural hazard" necessarily arises from the occurrence of some defined or recognised phenomena and the expression must have been intended to apply to a very wide range of circumstances. The cause or causes of the hazard are irrelevant; it is the occurrence or event of the hazard in nature that renders it a "natural hazard".
If human intervention has caused a "natural hazard" to no longer be 'natural', this would, the Council contended, have the nonsensical result that the SEPP would only protect seniors and people with a disability from unsuitable developments which were not caused or affected by some form of human intervention, which would be contrary to the objectives of the SEPP.
Thus, the Council submitted, the objective of the SEPP was best served by assigning a broad definition to "natural hazard" which encompasses any occurrence of a hazard in nature that could adversely affect human life or property.
A "geotechnical hazard" was therefore a "like description" for a "natural hazard" because a "geotechnical hazard" was similar in substance to a "natural hazard".
That there may be a wide range of causes of "geotechnical hazards" (some involving human intervention) did not, according to the Council, disentitle a finding that the expression was a "like description" for a "natural hazard" because, it emphasised, the objective of the SEPP required a broad definition be assigned to "natural hazard" to encompass any occurrence in the earth that may adversely affect human life or property (whether natural or unnatural).
A "geotechnical hazard" which was caused, or contributed to, by human intervention was still a "natural hazard" because the hazard was something which arose from the underlying behaviour of the ground conditions within the earth's surface - that is to say, which arose from nature. Hence subsidence hazards may have a variety of causal factors, ranging from soil type, slope, existence or absence of vegetation and the flow or potential flow of water onto land, but were nonetheless all occurrences in the earth that may adversely affect human life or property, and therefore, were a "natural hazard".
The only relevant enquiry was, the Council argued, whether the "hazard" itself involves a "natural" event. If a "geotechnical hazard" could be a "natural hazard" this was sufficient for it to constitute a "like description" for a "natural hazard".
By way of support for its argument, the Council sought to rely upon two extraneous documents. First, the Pittwater Development Control Plan 21 (the Geotechnical Risk Management Policy for Pittwater - 2009) ("the DCP") which establishes the risk management approach for property affected by geotechnical hazards within the Pittwater local government area (now encompassing the Council). The DCP defines a "geotechnical hazard" as "a condition with the potential for causing the movement of rock, debris or earth, which may cause injury or death to persons or damage to, or destruction of property." There being no circumscription or necessity for human intervention contained in this definition of "geotechnical hazard" supported the construction that a "natural hazard" readily encompassed a "geotechnical hazard". The definition was also consistent with the objectives of cl 7.7 of the PLEP, which were directed to risks present in the land.
Second, a definition given to the term "natural hazard" in the Resource Management Act 1991 (NZ), namely, that: natural hazard means any atmospheric or earth or water related occurrence (including earthquake, tsunami, erosion, volcanic and geothermal activity, landslip, subsidence, sedimentation, wind, drought, fire, or flooding) the action of which adversely affects or may adversely affect human life, property, or other aspects of the environment
It is convenient to deal first with the use of these extrinsic materials by the Council. With respect to the DCP, it is impermissible to use a development control plan to construe a piece of delegated legislation such as the PLEP or the SEPP. In any event, the definition of "geotechnical hazard" in the DCP does not assist the Council given its silence as to whether the "condition" is naturally occurring or man-made.
Reliance on the Resource Management Act was similarly misplaced, in my view. Leaving aside the clear and present danger of relying on overseas legislation to assist in the construction of domestic statutes, absent the context within which the term "natural hazard" appears in the Act, it is impossible to determine whether or not the expression, as it appears in that legislation, includes hazards that are the result of human intervention. In addition, the definition given to the expression in the Act appears to be directed to the occurrence (that is, the event itself) of the hazard, and not, unlike PLEP or the SEPP, the risk of that hazard occurring and its mitigation by dint of the application of a particular planning regime.
In my opinion, the expression "geotechnical hazard" is not a "like description" in the sense of a similar description for "natural hazard" for the reasons set out below.
Although each expression contains the word "hazard" there is a substantial (not a matter of mere form) difference between the adjectival description "geotechnical" and "natural".
Noting the curial caution expressed in over-reliance upon dictionary definitions to solve construction conundrums (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [25]-[30]), the Macquarie Dictionary (online ed) defines "natural" as "1. existing in or formed by nature; not artificial" and "2. based on the state of things in nature; constituted by nature". The word "geotechnical" is defined as "of or relating to those aspects of activities such as mining, engineering, building etc, which are affected by the geology of the terrain in which they are undertaken".
The Oxford English Dictionary (online ed) similarly defines "natural" as "a person or thing having a natural, unaltered, or unrefined quality or attribute" and "a. A natural thing or object; something having its basis in the natural world or in the usual course of nature. In modern use: a natural product, a product that has not been processed or manufactured." Whereas, "geotechnical" is (less helpfully) defined as "both technical and geological or geographical" with a cross-reference to "geotechnic" meaning "of or relating to the application of technology to the utilization of the earth."
Mindful that reference must be made to "the whole of any one of the verbal descriptions contained in the Schedule" (Druitts at [14] per Bignold J), it is nevertheless necessary in light of the way in which the Council put its case to also have regard to the definition of "hazard". The Macquarie Dictionary (online ed) defines the term as a "risk; exposure to danger or harm". The Oxford English Dictionary (online ed) has a similar definition, viz, "a risk of loss or harm posed by something".
Embedded in the concept of a "hazard", be it "natural" or "geotechnical", is an element of risk. That is, the possibility of an occurrence or event in the future; an exposure to future harm. It is not an exposure to an event that has already occurred. This is important because by focusing on past events, the Council has, in my opinion, misdirected itself away from the cause of the hazard to the location of the hazard.
All hazards - in the sense of events or occurrences - will have occurred on or in land, air, or water. Accordingly, all hazards will have occurred in 'nature', and therefore, can be described as a "natural hazard". The Council's construction would therefore result in all "geotechnical hazards" being a "like description" for "natural hazards" because, on one view, all of the former take place in nature. In other words, because the hazard or occurrence takes place in nature, it is "natural", and therefore, may be described as a "natural hazard". Thus, according to the Council, subsidence caused by excavation is a "natural hazard" even if it would not have occurred but for the excavation.
In my opinion, this construction of "natural hazard" in item (i) of Sch 1 of the SEPP is impermissibly broad. Interpreted in this manner it encompasses almost any hazard, including hazards such as those contained at items (g) "floodway" and (h) "high flooding hazard", leaving those risks or hazards with little or no work to do under the SEPP. This is unlikely to have been the objective intention of the drafter.
It also seems unlikely that the intention of the draftsperson was to render nugatory much of Pt 7 of the PLEP (and equivalent provisions in local environmental plans) by drafting the expression "natural hazard" in terms as wide as those posited by the Council. Given the primacy of the SEPP (see cls 5 and 15), this would leave little if any work to be performed by cl 7.7 and other clauses contained in Part 7 of the PLEP.
In my view, it is preferable to examine the cause of the risk of (or potential for) harm (that is, the "hazard") when construing the terms "natural hazard" and "geotechnical hazard". To do so aligns with the adjectival nature of the enquiry. In other words, is the hazard caused by (borrowing from the dictionary definitions above) the natural world or is it caused by mining, building or engineering; the application of technology to the earth?
On any common sense view a "natural hazard" is a hazard caused by nature. For example, an earthquake, a cyclone, tidal surge, wave or wind erosion is a "natural hazard". The distinguishing feature of a "natural hazard" is that it is the product of nature, not human intervention. Such events are beyond the control of humans. They can - and do - occur at any time, with the need for stringent planning controls being imposed to mitigate the risk. These are risks clearly identified in environmental planning instruments and are often managed by environmental zones prohibiting development.
By contrast, a "geotechnical hazard" is a hazard that is likely to have been created as a result of an interaction between (especially in the present context) the land and some form of human activity and/or technology (such as building, engineering, or mining).
Having said this, it must be acknowledged that some "geotechnical hazards" can be natural (for example, a sand dune). But this is not, contrary to the submissions of the Council, necessarily always the case, and many "geotechnical hazards" are likely to be the product of human intervention (for example, road embankments). This is acknowledged by Pittwater Council's own documents (see the Geotechnical Hazard Mapping of Pittwater LGA 2017).
A man-made geotechnical hazard cannot, however, be described as a "natural hazard". By using the descriptor "natural" to describe the type of "hazard" deemed to be "environmentally sensitive land" in Sch 1 of the SEPP the objective intention of the drafter was to distinguish between "natural" and non-natural or man-made "hazards".
This construction is supported by the context of Sch 1 of the SEPP. In item (m) of Sch 1 the draftsperson has deliberately used the word "natural" in the expression "natural wetland". This indicates a desire to differentiate between "natural" occurrences and non-natural or artificial affectations.
If it was the intention of the draftsperson to include all "geotechnical hazards" within the expression "natural hazard" the word "hazard" absent any adjectival descriptor could have been used in Sch 1. It was not.
Contrary to the submission of the Council, such a construction is, moreover, not inconsistent with the objects of either the PLEP or the SEPP.
With respect to the PLEP, cl 7.7 does not prohibit development on land identified on the Geotechnical Hazard Map. Rather, as is made plain in cl 7.7(3), it seeks to manage geotechnical risks, that is, risks that are largely described in terms of the potential impact of human activity (see at cl 7.7(3)(a)-(f)). The consent authority must be satisfied of the matters in cl 7.7(4) prior to a grant of consent.
In relation to the SEPP, cl 4 makes it clear that development for the purpose of dwelling houses that is not land described in Sch 1 is permissible.
There is similarly nothing inconsistent with a narrower interpretation of "natural hazard" in Sch 1 with the objects of Ch 3 of the SEPP ("Development for seniors housing") as stated in cl 14 of that instrument. First, as Whittaker correctly submitted, cls 14 and 15 are not engaged unless cl 4 is satisfied. Second, consent for the development of seniors housing is nevertheless required and a merit assessment of any geotechnical risks associated with any proposed development for seniors housing by the consent authority must occur. It is not the case, as the Council suggested, that a more confined construction of "natural hazard" will result in the development of housing for seniors on unsuitable land thereby endangering human life or property.
In Druitts Bignold J placed almost paramount importance on the zone objectives when identifying whether "subject to hazard from coastal erosion and storms (or both)" in the relevant local environmental plan was "like" the verbal description of "coastal protection; and natural hazard" in Sch 1 of the equivalent SEPP. In concluding that it was - notwithstanding the fact, as the Council noted, coastal erosion could occur as a result of natural or unnatural forces (marine traffic or man-made coastal structures) - his Honour gave the following reasons (at [23]-[31]): 23 In my opinion and subject to what I shall presently say about the requirement that the environmental planning instrument relevantly "identify" relevant environmentally sensitive land, I do not accept the applicant's argument that reference to zone objectives would create such unreasonable or inconvenient or unjust results as to warrant, as a matter of construction, outright rejection of even the possibility that the zone objectives may be held to be a source of identifying relevant land for the purpose of Sch 1 to SEPP No 5. 24 In so concluding, I would refer to the importance of express zone objectives (which are now commonly included in environmental planning instruments) in the administration of planning law that is now well established in cases such as the present, where there is imposed upon a consent authority the obligation to ensure that any development to which it proposes to grant consent is "consistent with" (or other similar expression) the relevant zone objectives. 25 Indeed, a number of recent decisions of the Court of Appeal have held that such provisions operate as "conditions precedent" to the grant of a valid consent: see Franklins Limited v Penrith City Council [1999] NSWCA 134; Schroders Australia Property Management Ltd v Shoalhaven Council (2001) NSWCA 74. 26 In the present case, cl 10(3) of the LEP provides as follows: "The Council must not grant consent for development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development within those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development." 27 It remains for me to consider the question whether the zone objectives to Zone No 2(f) under the LEP in expressly postulating that land within the zone is "identified as being subject to hazard from coastal erosion and storms (or both)" is itself a source of identification of relevant environmentally sensitive lands for the purposes of Sch I to SEPP No 5. 28 In my judgment, in order for that stated objective to qualify as a relevant source of identifying relevant lands for the purposes of Sch I to SEPP No 5, two conditions must be satisfied, namely: (i) the expression "subject to hazard from coastal erosion and storms (or both)" must satisfy the verbal description of Sch I by being either a "like description" or a "description that incorporates" any of the verbal descriptions contained in Sch 1 (since it is obvious that the expression does not correspond, in terms, with any of the verbal definitions contained in Sch 1); and (ii) it must be legitimate for the precise identification of the land postulated in the zone objective to be "subject to hazard from coastal erosion and storms (or both)" to be achieved by reference to "another document or to extrinsic facts" (being an expression employed by Gibbs CJ in giving one of the majority judgments in Dainford Ltd v Smith (1985) 155 CLR 342 at 348). 29 Is each of these conditions satisfied in the present case? 30 As to the former condition, I am of the opinion that the expression employed in the Zone objective is a description ofland that is "like" the following verbal descriptions contained in Sch 1, namely: "coastal protection; and natural hazard". 31 As to the latter condition, I am of the opinion that it is legitimate to perfect or complete the identification process of relevant land that is "subject to hazard from coastal erosion and storms (or both)" by reference to another document or to extrinsic facts, provided that that result is sufficiently certain. In so holding, I am assuming that the requirement of identifying relevant lands for the purpose of Sch 1 requires some precision, on my understanding that the Zone objective does not, itself, precisely define what lands within Zone No 2(f) are relevantly "identified as being subject to hazard from coastal erosion and storms (or both)". I am here assuming, that the objective was not intended to operate, nor does it operate, on the basis that all lands within Zone No 2(f) have been so identified.
The Council placed considerable reliance upon the above passage, but in my view it is of limited assistance as the more recent decisions below make plain.
In Pepperwood at issue was whether Sch 1 of the SEPP applied to land because the relevant zone objectives in the local environmental plan did not identify the land by the descriptions "conservation" or "environment protection" or by any "like descriptions" in Sch 1. In the course of concluding that it did, Tobias JA (with whom Giles JA at [1] and McColl JA at [45] agreed) summarised the principles articulated in the leading case of Punnett (at [36]): Punnett is authority for the proposition that in determining this issue the Court is not confined to the short name given to the relevant zone. Nonetheless, there must be words in the text of the LEP, or the map referred to as part of the LEP, which are "used descriptively with reference to the subject land": Punnett (Mason P) at [13]. In my opinion, this requires that the words relied upon be words of description that identify the land in accordance with one or more of the words or expressions set forth in (a) to (m) of Sch 1.
The question for determination in Pepperwood was whether "there were words in objective (b) [to Zone 7(c) of the local environmental plan] which identify the Land by the description 'conservation' or any like description?" (at [37]).
Tobias JA applied the reasoning in Punnett to hold that (at [38] - [41]): 38 As the appellant points out in its written submissions, the verbal markers specified in one or more of the paras (a)-(m) of Sch 1 to the Policy may be found in the objectives to a number of other zones in the LEP. For example, in Zone 1(a) Rural Residential Zone, objective (a) is to accommodate rural and semi-residential development that is "sensitive to the environment". Is that textual reference used descriptively with reference to identifying the land the subject of that zone? Again, in Zone 2(a) Residential Zone, objective (a) is to accommodate a diversity of housing forms that respect, inter alia, "the quality of the environment". Is the word "environment" used in the objective descriptively with reference to identifying the land the subject of that zone? In Zone 5(b) Special Uses Reservation Zone, objective (b) is to reserve for open space purposes land possessing, among other things, "special conservation value". Do the words of that objective identify the land within that zone by the necessary description? 39 During the course of argument, the parties referred to the provisions of s 26(3)(b) of the Environmental Planning and Assessment Act 1979 (NSW), which provides that the environmental planning instruments described in the subsection are local environmental plans that (b) make provision for the development of land that is identified by a map or a description. 40 The words of s 26(3)(b) resonate in the chapeau of Sch 1. When combined with cl 4(2)(a) of the Policy, Sch 1 relevantly mandates that the Policy not apply to land that is identified in the LEP by one or more of the listed descriptions or some like description. As noted above, in order for the chapeau to exclude the land from the operation of the Policy, this Court must be able to locate in objective (b) a textual reference that identifies the land by the description "conservation" or "environment protection" or some like description. More broadly, and adopting Mason P's approach in Punnett, for words in a zone objective to be relevant to an enquiry such as the present, words must be used descriptively in the LEP by way of identifying the land, those words being one or more of the descriptions contained in paras (a)-(m) of Sch 1, or like descriptions. 41 For the words of objective (b) to Zone 7(c) to satisfy the foregoing test, it would, in my opinion, be necessary to find that the words identify the land by describing it by reference to the conservation values that are to be conserved. But in my view, it is not possible to find that the objective uses the words "conservation values", or any other words in the objective, to identify the land in the zone by description. On the contrary, the word "conservation" is not one of the descriptors used in the objective to identify the land. Instead, it serves the purpose of attempting to ensure that the development of the land shall not prejudice its possible future development for urban purposes or environmental conservation. It is a general objective to be sought, through being considered to be required by cl 8(b) of the LEP and not necessarily always achieved in the development of the land in the zone, but is not an identifying description of that land
In the present case, there is similarly nothing in the Zone R2 objectives, cl 7.7(1) or the Geotechnical Hazard Map, that uses the word "natural" to identify the land by "like description". Rather, as earlier observed, cl 7.7 serves the general purpose of ensuring that geotechnical hazards are assessed and managed to avoid danger to life or property on land to be developed (such development is not, however, prohibited), and for the reasons given above, the descriptor "geotechnical" ought not be conflated with that of "natural". Accordingly, neither the zone objectives nor those contained in cl 7.7(1) of the PLEP are of material assistance to the interpretative task.

At a glance

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Judgment (9 paragraphs)

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Legislation Cited (1)

Cases Cited (16)

Cited By (8)