Creighton v Sutherland Shire Council - [2001] NSWLEC 190

Land and Environment Court

of New South Wales

CITATION: Creighton v Sutherland Shire Council [2001] NSWLEC 190

PARTIES:
APPLICANT:
David Bruce Creighton
RESPONDENT:
Sutherland Shire Council

FILE NUMBER(S): 11220 of 2000

CORAM: Lloyd J

KEY ISSUES: Words and Phrases :- "mean high water mark"

LEGISLATION CITED: Interpretation Act 1987 s 33
Sutherland Shire Local Environmental Plan 1993 cl 14A

CASES CITED: Cooper Brooks (Wollongong) Pty Ltd v The Federal Commissioner of Taxation (1981) 147 CLR 297

DATES OF HEARING: 15/05/2001

EX TEMPORE
JUDGMENT DATE :
05/15/2001

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A M Pickles (Barrister)
SOLICITORS:
Robert Silberberg
RESPONDENT:
Mr J A Cole (Solicitor)
SOLICITORS:
Abbott Tout

JUDGMENT:

IN THE LAND AND Matter No: 11220 of 2000

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 15 May 2001

Donald Bruce Creighton

Applicant

Sutherland Shire Council

Respondent

EXTEMPORE JUDGMENT

HIS HONOUR:

1. The applicant has appealed against the deemed refusal of a development application for a dwelling house on land known as Lot B in Deposited Plan 419163 also known as No. 41 Juvenis Avenue, Oyster Bay. That land has a frontage to the mean high water mark of the Georges River. A preliminary question of law has been referred to me concerning the application and interpretation of cl 14A of Sutherland Shire Local Environmental Plan 1993 (“the LEP”).

2. Clause 14A of the LEP provides as follows:

1) The objectives of the clause are:

a) preservation and enhancement of the natural features and vegetation of the area where the land meets the water;

restoration of the land below the foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures;

no development below the foreshore building line other than development excepted by this clause;

a significant reduction in the number of structures below the foreshore building line, particularly on redevelopment;

conservation and enhancement of waterfront development of heritage value; and

avoidance of pollution of, or adverse ecological effects on, the waterways.

In this clause,

“foreshore building line”

means the line shown on the maps by a broken black line on an allotment of land, which is parallel to (and at the distance specified on the maps from) the mean high water mark of tidal water as shown on the Deposited Plan for the allotments at 24 April 1980, regardless of the reclamation, other works or changes occurring since that date. If that definition results in a foreshore building line which is at a distance of less than 7.5 metres from the landward boundary of a waterfront reserve on the present mean high water mark of tidal water, or no such line is shown on the maps, the foreshore building line is taken to be a line parallel to and 7.5 metres from the landward boundary of the reserve or (if there is no such reserve) the present mean high water mark.

A person must not erect a building or carry out a work…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 190
Decision Date: 05/15/2001

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, David Bruce Creighton sought to appeal the deemed refusal of a development application for a dwelling house on land at Lot B, Deposited Plan 419163, also known as No. 41 Juvenis Avenue, Oyster Bay. The land has a frontage to the mean high water mark of the Georges River. The key issue for the court was the interpretation of the term "foreshore building line" as defined in Clause 14A of the Sutherland Shire Local Environmental Plan 1993. Specifically, the court needed to determine whether the foreshore building line should be measured from the mean high water mark as shown on the deposited plan for any relevant allotments as at 24 April 1980, or from the mean high water mark on the deposited plan for the individual allotment in question.

The applicant argued that the foreshore building line should be measured twenty metres from the mean high water mark on Deposited Plan 419613, connecting points measured along lines parallel to the boundaries of the allotments to replicate the shape of the mean high water mark. The council, on the other hand, contended that the foreshore building line should be plotted by a series of points measured a specified distance from the mean high water mark at ninety degrees, potentially requiring a starting point from the mean high water mark on an adjoining allotment.

Lloyd J adopted a purposive approach to statutory interpretation, guided by Section 33 of the Interpretation Act 1987. The court held that the underlying purpose of the foreshore building line was to establish a boundary on the map beyond which development is not permitted. The court concluded that it would be irrational and absurd to have two non-intersecting foreshore building lines. The definition of "foreshore building line" refers to a line in the singular, not multiple lines, and the word "parallel" implies equidistance at all corresponding points. Therefore, the foreshore building line should be measured from the mean high water mark as shown on the deposited plan for any relevant allotment having frontage to the mean high water mark.

Orders