Imbree v Sutherland Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Imbree v Sutherland Shire Council [2012] NSWLEC 1293
Hearing dates:	11, 12, and 13 September 2012
Decision date:	13 September 2012
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	Appeal dismissed - see para (17)
Catchwords:	Deeming provisions; mean high water mark
Legislation Cited:	Sutherland Shire Local Environmental Plan 2006
Category:	Principal judgment
Parties:	P A and PJ Imbree (Applicants) Sutherland Shire Council (Respondent)
Representation:	Applicants in person Mr C McEwen SC Mr M Staunton Barrister (Respondent) HWL Ebsworth (Respondent)
File Number(s):	10377 of 2012

EX TEMPORE Judgment

1. SENIOR COMMISSIONER: There are a number of matters from Victorian English literature that have been reflected in the laws of New South Wales. Two of them come from the writings of Lewis Carroll, the first from the remarks of the Queen of Hearts in Alice's Adventures in Wonderland where the queen repeatedly cried, "Off with her head," or, "Off with their heads", in one instance saying, "Sentence first, verdict afterwards". The second comes from the same author's writings in chapter 6 of Through the Looking Glass in an exchange between Alice and Humpty Dumpty, when Humpty Dumpty says, "When I use a word it means just what I choose it to mean, neither more nor less."

1. The first of the propositions, "Off with her head", was rectified in its entirety by the removal of the last vestiges of the death penalty, from New South Wales legislation by the Crimes (Death Penalty Abolition) Amendment Bill in 1985, a piece of legislation coincidentally introduced by my colleague (then Attorney-General and now) Sheahan J of this Court which I, then in opposition, had the pleasure of supporting.

1. The second of them, however, the concept that words mean just what they choose to mean, is reflected in the provisions of cl 17 of the Sutherland Shire Local Environmental Plan 2006, at subcl 6, where there is a provision that reads:

The deemed mean high water mark in relation to land means the mean high water mark or high water mark as shown on any plan relating to that land that was registered with the registrar general on or before 24 April 1980, being a plan that was current at that date.

1. There are three plans that need to be considered, relevantly, for interpretation of that provision. They relate to three adjacent allotments with water frontages at Rutherford Avenue at Port Hacking.

1. The first of them relates to lot 19 (as it then was) in Deposited Plan 10703. By a subsequent deposited plan, that allotment - to the southwest of the allotment that is the subject of these proceedings - was subdivided and, as a consequence, became depicted in Deposited Plan 550640. This involved a redefinition, amongst other things, of the location of the mean high water mark at the Port Hacking frontage of what had originally been lot 19 in Deposited Plan 10703.

1. For the purposes of…