Elachi v Council of the City of Shoalhaven

[2016] NSWCA 15

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Elachi v Council of the City of Shoalhaven [2016] NSWCA 15

Hearing dates:

11 February 2016

Date of orders:

11 February 2016

Decision date:

18 February 2016

Before:

Basten JA at [1];
Ward JA at [35];
Sackville AJA at [36]

Decision:

(1)   Dismiss the appeal.

 (2)   The appellant to pay the respondent’s costs of the appeal.

Catchwords:

PLANNING AND ENVIRONMENT – clearing vegetation – whether development consent required to clear prescribed vegetation – whether an exemption for clearing native vegetation from land identified on the Clauses Map, cl 5.9(9A) Shoalhaven Local Environmental Plan 2014 – whether Shoalhaven Development Control Plan 2014, cl 5.2.3 is inconsistent or incompatible with, or overlaps Shoalhaven Local Environmental Plan 2014, cl 5.9(8) and (9A)

 

PLANNING AND ENVIRONMENT – clearing native vegetation on land with environmental zoning – whether consent required under Shoalhaven Local Environmental Plan 2014 – whether activity exempt under Native Vegetation Act 2003 (NSW) – whether offence under Environment Planning and Assessment Act 1979 (NSW), s76A(1)

  STATUTORY INTERPRETATION – principles – relationship between provisions in different statutes of same polity – legislation creating hierarchy of instruments – functional approach to provisions conferring power on different authorities – legislation limiting need for dual authorisations

Legislation Cited:

Constitution, s 109
Environmental Planning and Assessment Act 1979 (NSW), ss 4, 5, 13, 18, 21, 26, 33A, 74, 74C, 76A, 76B; Pt 3, Divs 1, 2, 6; Pt 4; Pt 5
Native Vegetation Act 2003 (NSW), ss 11, 12, 16, 19, 20, 21, 22; Pt 3, Divs 2, 3, 4
Native Vegetation Regulation 2013, cl 29
Shoalhaven Development Control Plan 2014, Ch G4; cll 1, 2, 5.1, 5.2, 5.4
Shoalhaven Local Environmental Plan 2014, cll 5.9, 5.9AA
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), cll 1.16, 2.35

Cases Cited:

Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; 155 LGERA 52
Cullis v Ahern (1914) 18 CLR 540
Sweedman v Transport Accident Commission (2006) 226 CLR 362; [2006] HCA 8

Texts Cited:

M Leeming, Resolving Conflicts of Law (The Federation Press, 2011)

Category:

Principal judgment

Parties:

Charbel Elachi (Appellant)
Council of the City of Shoalhaven (Respondent)

Representation:

Counsel:
Ms S Duggan SC/Ms J Reid (Appellant)
Mr I Hemmings SC/Mr S Nash (Respondent)

  Solicitors:
Gadens Lawyers (Appellant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

CA 2015/165003

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2015] NSWLEC 85

Date of Decision:

27 May 2015

Before:

Biscoe J

File Number(s):

LEC 2015/40382

Judgment

1. BASTEN JA: On 4 April 2015 the appellant, Mr Charbel Elachi, cleared an area of native vegetation on land at Callala Beach in the Shoalhaven local government area. The respondent Council brought proceedings in the Land and Environment Court seeking a declaration that the work contravened s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”), an order restraining the appellant from undertaking further clearing and an order that he restore the property to its pre-clearing state. On 27 May 2015 Biscoe J made the declaration and the restraining order. [1] (An order for rectification was later made by consent.)

   1. Council of the City of Shoalhaven v Elachi [2015] NSWLEC 85.

2. The general scheme of Pt 4 of the EP&A Act provides that development may be characterised by an environmental planning instrument as (i) exempt (not requiring consent from the relevant consent authority – s 76), (ii) permissible with consent (s 76A) and prohibited development (s 76B). There was no dispute that the clearing undertaken by the appellant constituted “development”; the question was whether it could be lawfully carried out without consent. As no relevant consent had been obtained, if consent were required the work contravened s 76A(1).

3. For reasons which follow, the trial judge was correct to determine that there had been a breach of s 76A(1). The reasoning necessary to reach this conclusion follows a complex chain of legislative provisions, the scope and interrelationship of which are unhappily (and unnecessarily) obscure.

Shoalhaven Local Environmental Plan

4. Subject to other statutory controls, the requirements for and conditions of consent depend on the operation of the Shoalhaven Local Environmental Plan 2014 (“the LEP”). There is a second statute which is potentially relevant, namely the Native Vegetation Act 2003 (NSW). However, the application of that Act in the present circumstances will depend primarily on the operation of the LEP and consideration of the Native Vegetation Act may therefore be deferred.

5. The provision of primary relevance in the LEP is cl 5.9. That clause imposes a prohibition on injuring or destroying any tree or other vegetation of a specified kind: cl 5.9(3). Such activity requires a development consent or other permit granted by the Council. If the trees or vegetation are not of the specified kind, they can be removed without development consent: cl 5.9AA. Accordingly, the critical question is which kinds of trees and other vegetation fall within the terms of cl 5.9, the answer being those “that are prescribed for the purposes of this clause by a development control plan made by the Council”: cl 5.9(2).

6. There are exceptions to this regime which are not relevant for present purposes. However, the first infelicity in expression arises from the scheme described above, making it necessary to set out the critical provisions in cl 5.9:

5.9   Preservation of trees or vegetation

(1)   The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.

(2)   This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.

Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner.

(3)   A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:

(a)   development consent, or

(b)   a permit granted by the Council.

…

(8)   This clause does not apply to or in respect of:

(a)   the clearing of native vegetation:

(i)   that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003, or

(ii) that is otherwise permitted under Division 2 or 3 of Part 3 of that Act, or

…

Note. Permissibility may be a matter that is determined by or under any of these Acts.

(9A)   Subclause (8)(a)(ii) does not apply in relation to land identified as “Cl 5.9” on the Clauses Map.

7. The first point to note is the awkward language used in subcll (2) and (3). Subclause (2) is straightforward: it provides for the relevant species or kinds of trees and vegetation to be “prescribed” by a development control plan (“DCP”). The prohibition in subcl (3) does not apply to trees and vegetation prescribed by the DCP, but rather to trees and vegetation “to which [the DCP] applies”. That language appears to provide for a DCP which may limit its own operation, rather than one simply prescribing species or kinds of trees. Because cl 5.9 itself defines the circumstances in which it applies, there is the potential for inconsistency between the LEP and the DCP. That potential could have been avoided if subcl (3) had prohibited injuring or destroying any tree or other vegetation “to which this clause applies”. Noting that potential difficulty, it is necessary to consider the terms of a DCP to determine what trees and vegetation are prescribed for the purposes of the prohibition and to what trees and vegetation it applies.

8. Before taking that step, a second issue should be identified, namely the non-application of cl 5.9 identified in subcl (8)(a). The apparent intention of subcl (8) is to withdraw the prohibition to the extent it involves clearing native vegetation, in circumstances where the clearing is authorised or permitted under the Native Vegetation Act. However, there was no development consent or property vegetation plan relevant to the appellant’s land under the Native Vegetation Act; accordingly, subcl (8)(a)(i) was not engaged. Further, the appellant’s land was identified as “cl 5.9” on the Council’s “Clauses Map”, with the result that, by virtue of subcl (9A), subcl (a)(ii) was not engaged.

9. Before turning to consider the DCP, it is convenient to note the statutory provenance of cl 5.9 in the LEP. In 2005 an amendment to the EP&A Act introduced new provisions allowing the Governor to publish orders in the Gazette prescribing a standard form and content of local environmental plans and other planning instruments. [2] A Standard Instrument (Local Environmental Plans) Order 2006 was gazetted, which permitted a local environmental plan to be made by declaring that mandatory provisions in the Standard Instrument were adopted. Clause 5.9 was a mandatory or compulsory provision within that scheme, subject to subcl (9) which was optional and limited the operation of subcl (8)(a)(ii) by reference to particular zones. As may be seen from the terms of subcl (9) in fact adopted in the Shoalhaven LEP, the optional subcl (9) was adapted to the local circumstances. The fact that the language of cl 5.9 (other than subcl (9)) is in standard form has significance when considering the interrelationship between that clause and terms in the DCP.

   2. Section 33A, inserted by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (NSW).

10. There is one further factor which needs to be taken into account in construing cl 5.9, namely cl 5.9AA, which is also part of the compulsory provisions in the standard instrument. It reads:

5.9AA   Trees or vegetation not prescribed by development control plan

(1)   This clause applies to any tree or other vegetation that is not of a species or kind prescribed for the purposes of clause 5.9 by a development control plan made by the Council.

(2)   The ringbarking, cutting down, topping, lopping, removal, injuring or destruction of any tree or other vegetation to which this clause applies is permitted without development consent.

11. Thus cl 5.9AA envisages that all trees and vegetation in the area covered by the LEP may be divided into two categories, namely those prescribed for the purposes of cl 5.9 and those not so prescribed. The prohibition contained in cl 5.9(3) must be read in a way which reflects this dichotomy. This factor has significance in considering the appellant’s submission with respect to the operation of cl 5.9(3).

Development Control Plan

12. The relevant provisions in the Shoalhaven Development Control Plan 2014 (“the Shoalhaven DCP”) are contained in Chapter G4, cl 1 of which states:

1   Purpose

The purpose of this Chapter is to nominate trees and other vegetation for the purpose of clause 5.9 of the [LEP] ….

This Chapter also provides guidance for the removal or pruning of trees on land in the Shoalhaven Local Government Area (LGA). This Chapter outlines where and when approval is required under the [EP&A Act], but is also subject to other legislation listed in Part 6. It also outlines the application process for approval.

13. Chapter G4, cl 2 says that the chapter “applies to all land within the Shoalhaven [Local Government Area].” The appellant submitted that, for the purposes of cl 5.9(3) of the LEP, the Shoalhaven DCP does not “apply to” trees and vegetation on his land. Clause 2 of the Shoalhaven DCP, he submitted, did not contradict that proposition: although the Shoalhaven DCP applied to his land, an exemption within it meant that the DCP did not apply to trees and vegetation on his land.

14. Before turning to the exemption, it is convenient to identify another key provision in the Shoalhaven DCP. Clause 5.1 of Ch G4 prescribes trees or vegetation for the purpose of cl 5.9(2) of the LEP. The prescription is of “[a]ll species of trees or vegetation”, occurring within three identified areas. These are, (1) areas mapped by the chapter, (2) “publically [sic] owned land” and (3) urban areas, identified by particular zones. In the third area, there are qualifications to the breadth of the prescription, which need not be addressed because the appellant’s property was within the first category, namely an area mapped by Ch G4.

15. Clause 5.2 of the Shoalhaven DCP is headed “When is Approval Required?” The purpose of this clause is to provide “exemptions” from the need to obtain a development approval or a tree removal permit. The provision is divided between “Urban Area” and “Non-urban Area” exemptions. With respect to urban areas, the exemptions purport to exclude the need for either a development approval or a tree removal permit in some circumstances and in respect of some species. It is not necessary to consider the operation of those provisions: the relevant zoning of the appellant’s property placed it within non-urban areas. In relation to non-urban areas, the exemptions identify activities which do not require a development approval from Council in various circumstances including, relevantly for present purposes:

“b)   The clearing of native vegetation that is authorised by a development consent or property vegetation plan under the NV Act 2003 or that is otherwise permitted under the NV Act 2003 consistent with Australian Standard Protection of trees on development sites (AS 4970-2009)”.

16. The scope of this provision is not clearly expressed. It does not purport to exclude the need for a tree removal permit (as opposed to a development application), but, nevertheless, cl 5.4 “Application procedures”, limits the circumstances in which an application should be made for a permit to “urban and RU5 zones for less than 10 trees”. In other cases, including non-urban zones, a development application is required. Accordingly, it would seem that the clause purports to exempt activity falling within its terms from the need for any form of Council permit or consent.

17. Despite the breadth of the prescription of trees and vegetation for the purposes of cl 5.9(2) of the LEP, the appellant submitted that the effect of the exemption was that the Shoalhaven DCP did not apply to the trees and vegetation on his land, for the purposes of cl 5.9(3). However, there are two reasons why the exemption in the Shoalhaven DCP does not assist the appellant. First, there is a question as to the validity of such an exemption in the Shoalhaven DCP.

Status of the Shoalhaven DCP

18. A DCP does not fall within the definition of an “environmental planning instrument” in s 4(1) of the EP&A Act, being a document prepared by the relevant planning authority (in this case the Council), without the formal procedures required, for example, for an LEP, which is an environmental planning instrument. [3] The purposes, status and permissible content of a DCP are strictly confined. Thus, a DCP may address only the matters identified in s 74C of the EP&A Act, which provides, relevantly for present purposes:

74C   Preparation of development control plans

(1)   The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable:

…

(e)   to make provision for anything permitted by this Act to be prescribed by a development control plan.

Note. See for example section 26(4)(a).

3. See EP&A Act, Pt 3, Div 6.

19. As noted above, s 26 of the EP&A Act provides for an environmental planning instrument to make provision for protecting or preserving trees or vegetation: s 26(1)(e). The section also contains the following provision:

26   Contents of environmental planning instruments

…

(4)   An environmental planning instrument that makes provision for or with respect to protecting or preserving trees or other vegetation may make provision:

(a)   for development control plans to specify the species or kinds of trees or other vegetation included in or excluded from the relevant provisions, and

(b) for the grant of permission to remove or otherwise affect trees or other vegetation, and for a refusal to grant permission to be treated as a refusal or failure to grant development consent under and for the purposes of Part 4.

20. There is a distinction in function between a provision specifying species or kinds of trees or other vegetation for the purposes of s 26(4)(a), and a provision exempting particular activities from an otherwise applicable prohibition imposed by an LEP. Nevertheless, the appellant submitted that the note to cl 5.9(2) (see [6] above) allows the specification to be (somewhat ungrammatically) “by reference to species, size, location or other manner.” This approach to construing the regulatory language is unattractive: first, it is cl 5.1 in the Shoalhaven DCP which states that it is specifying the species for the purposes of cl 5.9(2), whereas the exemptions are contained in a separate provision (subcl 5.2.3) which has a different purpose. Secondly, subcl 5.2.3 identifies activities, not species of vegetation. The preferable view is that this provision does not constitute the specification of species for the purposes of s 26(4)(a) and is therefore invalid. (It was not submitted that it fell within s 26(4)(b).)

21. However, the exemption fails for a second and more powerful reason. Section 74C of the EP&A Act deals with the relationship between provisions in a DCP and an environmental planning instrument (such as an LEP), not only where there is inconsistency, but also where there is overlap.

74C   Preparation of development control plans

…

(5)   A provision of a development control plan (whenever made) has no effect to the extent that:

(a)   it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or

(b)   it is inconsistent or incompatible with a provision of any such instrument.

22. In key respects, the language of the exemption in subcl 5.2.3(b) in the Shoalhaven DCP is substantially the same as the language of subcl 5.9(8) of the LEP. The first limb is identical to subcl (8)(a)(i); the second limb abbreviates the language of subcl (8)(a)(ii), “otherwise permitted under Division 2 or 3 of Part 3 of that Act”, to “otherwise permitted under the NV Act 2003”. However, Pt 3, Divs 2 and 3 of the Native Vegetation Act are the only provisions of that Act which permit clearing of native vegetation. In other words the effect is identical. The last words of the exemption in the Shoalhaven DCP deal with the manner in which clearing may be effected; they do not address when clearing is permitted.

23. In circumstances where the LEP addresses the question of permission, authority and exemption under the Native Vegetation Act, by virtue of s 74C of the EP&A Act, any provision in the Shoalhaven DCP which is substantially the same as cl 5.9(8) of the LEP will have no effect. Nor will such a provision which is inconsistent with the LEP have any effect, which must be the case in respect of the land marked on the Clauses Map as Cl 5.9 land. In these circumstances, it would seem the exemption in the DCP can have no operation and need not be considered further.

Construction of LEP, cl 5.9

24. The appellant sought to escape this conclusion by an argument as ingenious as it was unpersuasive. The argument turned on two propositions. The first concerned the operation of cl 5.9(9A) in the LEP. The effect of that provision, it was submitted, was to remove subcl (8)(a)(ii) from the LEP. In other words, in respect of land identified as cl 5.9 land on the Clauses Map, cl 5.9 no longer had anything to say about clearing permitted under the Native Vegetation Act. Because cl 5.9 had, by virtue of subcl (9A), vacated that field, it was open to the Shoalhaven DCP to address that issue. Thus, the exemption in the Shoalhaven DCP neither overlapped, nor was it inconsistent with, cl 5.9 of the LEP.

24. The second stage of the submission sought to sidestep an obvious objection to this reasoning. The objection is that subcl (9A), when operative, does not “remove” anything from cl 5.9; rather, it disengages the exemption permitted under subcl (8)(a)(ii). The LEP addresses and provides a limited exemption based on the operation of the Native Vegetation Act. To extend that operation, the appellant submitted, is neither to overlap it, nor to do something inconsistent with it, unless it can be said that cl 5.9 is intended to “cover the field” of the operation of the Native Vegetation Act. That approach, the appellant submitted, was impermissible, because it called in aid a form of inconsistency developed for the purposes of s 109 of the Commonwealth Constitution, dealing with inconsistency between Commonwealth and State laws. Relying on statements by Kirby P in this Court in Coffs Harbour Environment Centre Inc v Minister for Planning, [4] applied in Castle Constructions Pty Ltd v North Sydney Council,[5] the appellant said that reference to s 109 jurisprudence was precluded and the court should rely on dictionary meanings to determine the scope of “inconsistency”.

    4. (1994) 84 LGERA 324 at 331.

    5. [2007] NSWCA 164; 155 LGERA 52 at [41] (Tobias JA, Bell JA agreeing).

25. This submission tends to confuse a warning (or caution) with a prohibition. While there are obvious similarities in approach in construing the language used in different kinds of documents, the need to have regard to context requires a functional approach. The point made by Kirby P in Coffs Harbour was that a provision in a federal constitution, providing the criterion for resolving conflicts between different laws in the federal hierarchy, performed quite a different function from a similar provision dealing with two laws enacted by the same legislature. A similar point was made in Sweedman v Transport Accident Commission,[6] a case involving inconsistency between state laws. It does not follow, however, that the court should resolve non-constitutional conflicts by reliance upon the range of synonymous terms provided in a dictionary; rather, the court should have regard to the institutional setting in which the conflict arises, with a proper understanding of the functions of the separate institutions and the relationship between them. There is no prohibition on adopting an analysis which might be appropriate in dealing with a conflict between Commonwealth and State laws; for example, if it can be seen that the LEP was intended to address both the extent to which recognition should be given to a permission granted under the Native Vegetation Act and the circumstances in which it should not, that may, in colloquial terms, lead to the conclusion that the LEP was intended to “cover the field” or to deal “completely and exclusively” with the subject matter in question. [7]

    6. (2006) 226 CLR 362; [2006] HCA 8 at [48].

    7. See Cullis v Ahern (1914) 18 CLR 540 at 543, discussed by M Leeming, Resolving Conflicts of Law (The Federation Press, 2011) at pp 77-78.

26. In the present case, there can be little room for doubt as to the proper construction of cl 5.9. Several factors are important in reaching that conclusion. First, it is at least doubtful whether the language of s 26(4) of the EP&A Act was intended to permit a DCP to address the operation of the Native Vegetation Act. Secondly, there is a clear hierarchy of legislative instruments, with the EP&A Act at the apex, environmental planning instruments at a second level (with an internal hierarchy), each involving a level of public consultation and Ministerial control, and finally DCPs as a mechanism permitting certain matters of detail and guidance to be specified, without any equivalent level of public involvement. The relevance of these considerations is reflected in the objects of the EP&A Act, which include the provision of “increased opportunity for public involvement and participation in environmental planning and assessment”: s 5(c). Bearing these functional considerations in mind, it would be remarkable if other State legislation, such as the Native Vegetation Act, should depend for its application in particular circumstances on the operation of a DCP.

27. Considering the operation of cl 5.9, the first relevant consideration, based on the language, is that the clause is addressed to the preservation of trees and other vegetation: it is not limited to the protection of native vegetation. Secondly, neither subcl 5.9(2) nor subcl 5.9(3), each of which recognises the role to be played by a DCP, indicates, expressly or by implication, that a DCP will deal with the operation of the Native Vegetation Act. If the LEP said nothing about the interrelationship between the two statutory regimes, one would not expect to find the relationship addressed in a DCP; there is even less reason to expect the matter to be addressed by a DCP in circumstances where there is specific provision made in the LEP.

28. Thirdly, having regard to the language of the LEP, the mandatory provision in cl 5.9(8) is intended to withdraw the constraints operating under cl 5.9(3) where clearing of native vegetation is authorised or otherwise permitted under the Native Vegetation Act. The primary purpose of this provision is to remove the need for dual authorisation. The purpose is not to remove the need for any form of authorisation. However, the standard instrument allows the Council to retain control in certain zones, including environmental conservation and management zones, whether or not clearing would be permitted under Pt 3 of the Native Vegetation Act. If the LEP states that the exemption is limited to cases where the trees or vegetation which may be affected is limited to native vegetation, where clearing is authorised by a development consent or property vegetation plan under the Native Vegetation Act, for the DCP to confer further exemptions is inconsistent with the operation of the LEP. The appellant’s submissions as to the operation of cl 5.9 must be rejected.

Native Vegetation Act

30. Given the reasoning set out above, only brief reference is needed to the structure and operation of the Native Vegetation Act. The operative provisions are found in Pt 3, which has four Divisions. Division 1 imposes a prohibition on the clearing of native vegetation except in accordance with a development consent granted in accordance with the Act or in accordance with a property vegetation plan: s 12(1). Division 2 deals with the clearing of “non-protected regrowth” (s 19) and “certain groundcover” (s 20). These provisions are not engaged in the present case. Putting to one side Div 3, Div 4 excludes clearing carried out in accordance with specific provisions in other state legislation; it is not engaged.

31. The relevant provisions relied upon by the appellant were to be found in Div 3, and particularly s 22, permitting clearing for “routine agricultural management activities”. That term is defined in s 11 by reference to a number of activities none of which covered the appellant’s activities, but the section also provided that the regulations might make provision “for or with respect to extending, limiting or varying the activities that are routine agricultural management activities, and subsection (1) is to be construed accordingly”: s 11(2). The appellant called in aid provisions of the Native Vegetation Regulation 2013 (NSW) which purported to permit clearing for the purpose of constructing a permanent boundary fence, where the clearing is carried out within six metres on either side of the fence: cl 29. Whether that provision in the Regulation should be construed (broadly) as operating for purposes having nothing to do with agricultural management and, if it is broadly construed, whether it is valid, need not be addressed. The activities permitted by Pt 3, Div 3 of the Native Vegetation Act cannot be relied upon by the appellant. That is because of the application of the Division, as expressed in s 21 of the Native Vegetation Act, which provides:

21   Application

(1)   This Division sets out the activities that do not constitute the clearing of native vegetation for the purposes of this Part and, accordingly, are permitted to be carried out without the authority conferred by a development consent or property vegetation plan.

(2)   This Division does not permit an activity without an approval or other authority required by another Act or in contravention of another Act.

32. There are numerous provisions in the Native Vegetation Act which recognise the potential operation of other statutory regimes to the clearing of native vegetation. Thus, s 16 deals with the relationship between the Native Vegetation Act and Pt 5 of the EP&A Act (not presently relevant). More importantly, Pt 3, Div 1 deals with the circumstances in which consent may be required under the EP&A Act and identifies the Minister (administering the Native Vegetation Act) as the relevant consent authority (s 13). Permitted clearing under Div 2 is subject to a provision which is relevantly identical to s 21(2): s 18(2). Accordingly, there can be no doubt that the purpose of s 21(2) is to withhold permission from an otherwise permitted activity where an approval or permission is required under the EP&A Act. That statutory scheme takes one back to the prohibition on carrying out any activity for which development consent is required under the EP&A Act otherwise than in accordance with a relevant consent, pursuant to s 76A(1) of the EP&A Act. As a result, if consent is required under the EP&A Act (which for reasons set out above it is) then Pt 3, Div 3 of the Native Vegetation Act provides no authority for carrying out such activities without the required consent.

State Environmental Planning Policy

33. For completeness it may be noted (and no contrary argument was put for the appellant) that a provision of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) would, by similar reasoning, not be engaged. Thus, pursuant to cl 2.35, the construction of a fence on land within an environment protection zone would, in prescribed circumstances, qualify as exempt development, not requiring consent. The operation of the exemption is not engaged in the present case because it does not cover the clearing of trees or other vegetation. Thus cl 1.16 provides:

1.16   General requirements for exempt development

…

(3)   To be exempt development for the purposes of this Policy, the development must:

…

(b)   not involve the removal or pruning of a tree or other vegetation that requires a permit or development consent for removal or pruning, unless that removal or pruning is undertaken in accordance with a permit or development consent.

Note: A permit for the removal or pruning of a tree or other vegetation may be granted under a local environmental plan. A development consent for the removal of native vegetation may be granted under the Native Vegetation Act 2003.

Conclusion

34. These reasons demonstrate that the trial judge was correct in making the orders referred to above. It follows that the appeal must be dismissed with costs. Orders in the following terms were made at the conclusion of the hearing of the appeal on 11 February 2016, but may be restated for convenience.

(1)   Dismiss the appeal.

(2)   The appellant to pay the respondent’s costs of the appeal.

35. WARD JA: I concurred in the orders made on 11 February 2016 on the basis that, as explained by Basten JA, there was no error on the part of Biscoe J in holding that there had been a breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW). I agree with Basten JA's construction of cl 5.9 of the relevant Local Environment Plan. The argument of the appellant was in essence that there was no requirement that it obtain development consent for the removal of the trees or vegetation in question because, although the trees or vegetation were clearly "prescribed" by a development control plan made by the Council and hence by virtue of cl 5.9(2) the prohibition in cl 5.9(3) was engaged, the activity of removing those trees was one that was permitted under the said development control plan (because it was otherwise authorised under the Native Vegetation Act). Hence it was argued that the trees/vegetation in question were not trees or other vegetation to which a development control plan "applies" for the purposes of cl 5.9(3) of the Local Environment Plan. However, the verb "applies" in that sub-clause qualifies the words "any tree or vegetation", not the activity of removing them with which cl 5.2.3 of the relevant development control plan is concerned. There is force in the respondent's submission that if consent is required by reason of cll 5.9(2) and (3) then the fact that the land is mapped land for the purposes of cl 5.9(9A) does not have the effect that one metaphorically reads cl 5.9(8)(a)(ii) out of cl 5.9 altogether. Rather, as, Basten JA has indicated, the fact that this is mapped land has the effect that the exemption from the cl 5.9(3) prohibition that might otherwise have been available under cl 5.9(8)(a)(ii) is not engaged. Accordingly, for the reasons more fully articulated by Basten JA, I agreed with the orders made for the dismissal of the appeal with costs.

36. SACKVILLE AJA: I joined in the orders made on 11 February 2016 dismissing the appeal, for the following reasons.

37. In my view, the primary Judge was correct to conclude that the appellant contravened the prohibition cl 5.9(3) of the Shoalhaven Local Environmental Plan 2014 (LEP) and therefore breached s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW).

38. I agree with Basten JA that cl 5.9 of the LEP is awkwardly drafted. However, as his Honour has explained, the trees and vegetation on the appellant’s land had been prescribed for the purposes of cl 5.9(2) by the Shoalhaven Development Control Plan 2014 (DCP).

39. I agree with Ward JA that the expression “to which any such development control plan applies” in cl 5.9(3) of the LEP qualifies the words “any tree or other vegetation”. Although the language is infelicitous, when read in context, cl 5.9(3) is intended to prohibit harm to any tree or vegetation that is prescribed for the purposes of cl 5.9.

40. Other provisions in cl 5.9 of the LEP identify circumstances in which cl 5.9 (and therefore the prohibition in cl 5.9(3)) does not apply. These provisions include cl 5.9(8)(a), which specifically addresses the relationship between the Native Vegetation Act 2003 (NSW) and cl 5.9. In view of the express exceptions to the application of cl 5.9, it would be an odd reading of cl 5.9(3) to regard it as implicitly delegating to a development control plan the authority not merely to prescribe trees and vegetation for the purposes of cl 5.9, but the authority to create further exceptions to the general prohibition in cl 5.9(3).

41. I agree with Basten JA that cl 5.9(9A) of the LEP cannot be read in the manner contended for by the appellant.

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Endnotes

Amendments

18 February 2016 - [32] Amending typographical error.

Decision last updated: 18 February 2016