Elachi v Council of the City of Shoalhaven

The appeal concerned a dispute between Mr Elachi and the Council of the City of Shoalhaven regarding the clearing of native vegetation on Mr Elachi's property. The primary question was whether development consent was required under the Shoalhaven Local Environmental Plan 2014 (SLEP 2014) for the clearing of vegetation identified as "prescribed vegetation" on land zoned for environmental purposes. Mr Elachi contended that the clearing was exempt under clause 5.9(9A) of the SLEP 2014, which provided an exemption for clearing native vegetation on land identified on the Clauses Map. The matter came before the Court of Appeal of New South Wales.

The court was required to determine two principal legal issues. Firstly, whether the exemption in clause 5.9(9A) of the SLEP 2014 applied to the clearing undertaken by the appellant. Secondly, the court had to consider whether clause 5.2.3 of the Shoalhaven Development Control Plan 2014 (SDCP 2014) was inconsistent with, incompatible with, or overlapped with clauses 5.9(8) and (9A) of the SLEP 2014, and if so, what the effect of any such inconsistency or incompatibility would be. The court also considered whether the activity was exempt under the *Native Vegetation Act 2003* (NSW) and whether the appellant had committed an offence under section 76A(1) of the *Environmental Planning and Assessment Act 1979* (NSW).

In its reasoning, the court applied principles of statutory interpretation, particularly concerning the relationship between provisions in different statutes and instruments made under them. The court analysed the hierarchy of legislative instruments, noting that local environmental plans generally prevail over development control plans where there is an inconsistency. The court found that the exemption in clause 5.9(9A) of the SLEP 2014 was not applicable to the clearing in question, and that the provisions of the SDCP 2014 did not override or invalidate the requirements of the SLEP 2014. The court concluded that development consent was indeed required for the clearing.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.