KSK Developments Pty Limited v Murray Shire Council

[2009] NSWLEC 43

Land and Environment Court

of New South Wales

CITATION:	KSK Developments Pty Limited v Murray Shire Council [2009] NSWLEC 43
PARTIES:	APPLICANT KSK Developments Pty Limited RESPONDENT Murray Shire Council
FILE NUMBER(S):	11623 of 2008
CORAM:	Pain J
KEY ISSUES:	CONSTRUCTION AND INTERPRETATION :- meaning of "bed" and "bank" under LEP - application of purposive approach to statutory construction
LEGISLATION CITED:	Crown Lands Consolidation Act 1913 (Cth) Environmental Planning and Assessment Act 1979 s 26 Interpretation Act 1987 s 5(6), s33 Murray Local Environmental Plan 1989 cl 2, cl 5, cl 9, cl 10, cl 30 State Environmental Planning Policy No 1— Development Standards
CASES CITED:	Commonwealth v Baume (1905) 2 CLR 405 Comserv (No 1877) Pty Ltd v Figtree Gardens Caravan Park & Ors (1999) 102 LGERA 74 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 The State of Alabama v The State of Georgia 64 US 505 (1859)
TEXTS CITED:	Macquarie Dictionary (Revised third edition, 2001) Statutory Interpretation in Australia, D C Pearce and R S Geddes 6th ed LexisNexis, Australia, 2006
DATES OF HEARING:	2 April 2009
DATE OF JUDGMENT:	6 April 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti SC with Mr N Eastman SOLICITOR Cosgriff Orchard Legal RESPONDENT Ms S Duggan SOLICITOR Kell Moore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

6 April 2009

11623 of 2008 KSK Developments Pty Limited v Murray Shire Council

JUDGMENT

1 Her Honour: The Applicant appealed on 15 December 2008 against the Council’s deemed refusal of its development application (DA) for the construction of a tourist development and for community land subdivision on land known as Lot 23 Perricoota Road, Moama (the land). By Notice of Determination dated 16 December 2008 the Council approved the DA subject to conditions. These included a deferred commencement condition, which requires the relocation of certain buildings “within 60m of the high bank of the Murray River” (condition 9). There is also a condition requiring amended plans to be submitted (condition 3).

2 The proceedings have been listed for the determination of a preliminary issue:

That the development sought by the Applicant involves, on land zoned 1(a), the construction of buildings within 60 metres of any bank of the Murray River, which buildings are not ancillary to the use of the land for the purpose of a recreation area or to be used for the purpose of fisheries, irrigation works, marinas, utility installations or the servicing of vessels and so consent cannot be granted under clause 30(2) of the Murray LEP without an objection under SEPP 1 and the concurrence of the Minister for Planning.

3 A Statement of Agreed Facts and Contentions was tendered as was an agreed bundle of documents containing, inter alia, the Applicant’s DA, the development consent granted by Council subject to conditions and the Murray Local Environmental Plan 1989 (the LEP). Photographs of the Murray River at the site in the bundle show the acclivity of the slope of the channel of the river and that the channel of the river is clearly defined.

The proposal

4 The proposal is for a tourist development and community land subdivision. It involves the construction of 75 tourist accommodation units together with a manager’s residence, storage sheds for boats, swimming pool, tennis court, barbecue facilities, landscaping, water feature, walking tracks, car parking and the relocation of an existing pump shed. In addition, the proposal seeks a 77 lot community title subdivision for 75 tourist unit allotments, the manager’s residence allotment and the boat storage shed allotment, in addition to identified community allotments.

5 The site is located to the north and south of Perricoota Road. The site is bounded to the south by the Murray River for approximately 282m.

6 The site is zoned 1(a) (General Rural) under the LEP. The objectives of the zone are set out in cl 9 of the LEP as follows:

Zone No 1 (a) (General Rural)
1 Objectives of zone

The objectives of this zone are to promote the proper management and utilisation of resources by:

(a) protecting, enhancing and conserving:
(i) agricultural land in a manner which sustains its efficient and effective agricultural production potential,
(ii) soil stability by controlling and locating development in accordance with soil capability,
(iii) forests of existing and potential commercial value for timber production,
(iv) valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits,
(v) trees and other vegetation in environmentally sensitive areas where the conservation of the vegetation is significant to scenic amenity, recreation or natural wildlife habitat or is likely to control land degradation,
(vi) water resources for use in the public interest,
(vii) areas of significance for nature conservation, including areas with rare plants, wetlands and significant habitat, and
(viii) places and buildings of archaeological or heritage significance, including the protection of aboriginal relics and places,

…

7 Factors requiring consideration for development applications of sites zoned 1(a) (General Rural) are set out in cl 10:

10 General considerations for development within rural zones

(1) The Council shall not consent to an application to carry out development on land within Zone No 1 (a) or 1 (c) unless it has taken into consideration, if relevant, the effect of the carrying out of that development on:

(a) the present use of the land, the potential use of the land for the purposes of agriculture and the potential of any land which is prime crop and pasture land for sustained agricultural production,
(b) vegetation, timber production, land capability (including soil resources and soil stability) and water resources (including the quality and stability of watercourse and ground water storage and riparian rights),
(c) the future recovery of known or prospective areas of valuable deposits of minerals, coal, petroleum, sand, gravel or other extractive materials,
(d) the protection of areas of significance for nature conservation or of high scenic or recreational value, and places and buildings of archaeological or heritage significance, including Aboriginal relics and places,
(e) the cost of providing, extending and maintaining public amenities and services to the development,
(f) future expansion of settlements in the locality, and
(g) where the land is within Zone No 1 (a) and within 400 metres of the bank of the Murray River, the effect of the development on the riparian lands of that river.

8 Clause 30 refers to development along rivers and states as follows:

30 Development along rivers

(1) Notwithstanding any other provision of this plan, a person shall not, on land to which this plan applies:

(a) on land within Zone No 1 (a) or 1 (c) within 400 metres of any bank of a river, erect a building for any purpose,
(b) on land within 60 metres of any bank of a river, cause destruction to any tree,
(c) on land within 20 metres of any bank of a river, carry out development for any purpose, or
(d) on land comprising the bed or any bank of a river, carry out development for the purposes of:
(i) a canal,
(ii) a marina (including pontoons, jetties, piers of other structures) designed to provide mooring or dry storage for one or more vessels used for any purpose, or
(iii) filling or extraction,

except with the consent of the Council.

(2) The Council shall not consent to an application to erect a building on land comprising:

(a) a bed of a river, or
(b) land within Zone No 1 (a) or 1 (c) and being within 60 metres of any bank of the river,
unless, in the opinion of the Council, the building:
(c) is ancillary to the use of that land for the purpose of a recreation area, or
(d) is to be used for the purpose of fisheries, irrigation works (including the pumping and treatment of water for private domestic consumption), marinas, utility installations or the servicing of vessels or sea planes.

9 The preliminary question arises from the application of cl 30(2)(b).

10 The LEP contains a number of relevant definitions in cl 5 , namely:

bank means the limit of the bed of a river.
bed , in relation to a river, means the whole of the soil of the channel in which the river flows, including that portion thereof which is alternatively covered and left bare as there may be an increase or diminution in the supply of water and which is adequate to contain it at its average or mean stage without reference to extraordinary freshets in the time of flood or to extreme droughts
river means:
(a) the Edward, Murray or Wakool River, or
(b) the Gulpa, Bullatale or Tuppal Creek,

and their respective tributaries and associated waterways (including related branches, creeks, lagoons, lakes and billabongs).

11 No issue arises in relation to the definition of river, it is included simply to confirm that the Murray River along which the proposal is sited is included in the definition. I note that “freshets” referred to in the definition of “bed” are defined in The Macquarie Dictionary (Revised third edition, 2001) as:

a sudden rise in the level of a stream, or a flood, due to heavy rains or the rapid melting of snow and ice

12 It is agreed between the parties that for the period between 1 September 1996 to 30 January 2009, the average or mean stage of water level at the site of the proposed development was RL 86.449. This measurement is calculated by reference to the data kept by the Murray Darling Basin Authority which records the levels of water at various sites along the Murray River between the two weirs (Torrumbarry and Yarrawonga).

13 The buildings proposed to be constructed by the Applicant (which the Council did not consent to) are more than 60m from the point of the average or mean stage of water level at the site being RL 86.449.

14 The preliminary question concerns the construction of “bed” and “bank” in cl 5 of the LEP. The Applicant and the Council disagree about the proper construction of the definitions within the LEP which determine the point from which the 60m referred to in the preliminary question (based on cl 30(2)(b) of the LEP) is to be measured. The parties do agree that in the context of the Murray LEP the definition of “bank” requires that a single point be identified.

15 The parties agree that if the Council’s construction is accepted the development proposed does involve construction of buildings within 60m of any bank of the Murray River, a development standard in the LEP. It is therefore not permissible under cl 30(2) without a State Environmental Planning Policy No 1- Development Standards (SEPP 1) objection being upheld and required the concurrence of the Minister for Planning. If the Applicant’s construction is accepted cl 30(2) does not apply and no SEPP 1 objection or Minister’s concurrence is necessary. As development consent has been granted this would mean that the deferred commencement conditions 3 and 9 would need to be amended or deleted.

Applicant’s submissions

16 The construction of the definition of “bed” requires that “bank” must be the point where the average or mean water level rests. That level is agreed by the parties to be RL 86.449. Concerning the definition of “bed” in cl 5, “including” is to be construed as having a limiting effect so that bed is confined by all the words that follow “including”. Further, “and” in the words after “including” requires that the area of the bed must be that which is covered and left bare by water as it diminishes and increases and (emphasis added) which contains the average or mean stage of water level excluding freshets. That means the only relevant level can be the average or mean water level. That is the limit of the bed and is therefore the meaning of “bank”, being the limit of the bed. The definition of “bed” in cl 5 of the LEP requires that “bed” as defined in the LEP cannot extend beyond its own limits and is therefore the same as” bank”.

17 The definitions in the LEP appear in other legislation as discussed by Bryson J in Comserv (No 1877) Pty Ltd v Figtree Gardens Caravan Park & Ors (1999) 102 LGERA 74 which refers in turn to The State of Alabama v The State of Georgia 64 US 505 (1859). When the reasoning in Comserv and in Alabama v Georgia is considered the Applicant’s approach to the construction of the definitions of “bed” and “bank” is supported by those cases.

18 There can only be a single point for the bank (as the Council agrees). As the proposed buildings are more than 60m from the point of the average or mean stage of water level at the site the proposed buildings are not within 60m of any bank of the Murray River. This means that no SEPP 1 objection is required to be lodged and consequently the concurrence of the Minister for Planning is not required.

Council’s submissions

19 The Applicant’s approach to the construction of the definition of “bed” and consequently in relation to “bank” is incorrect. The text of the definition does not support such a construction. That approach ignores the initial words in the definition of “bed” meaning “the whole of the soil of the channel in which the river flows…”. The correct approach to the definition is to read the commencing words as applicable to the physical form of the channel in which the river flows.

20 In relation to the definition of “bed”, the word “including” in the definition should not be read as limiting the words before it, contrary to the Applicant’s construction. That construction reads “including” as “being” or “comprising” so that the definition “the whole of the soil of the channel” is limited by what follows after “including”. That renders ineffective the preceding initial words of the definition. Rather “including” and the words following clarify what should be considered when the physical form of the river is not obvious, by providing a means of deriving it mathematically. An area which is alternatively covered and left bare as water increases or decreases and which is adequate to contain the average or mean stage without freshets may be included as the bed. The definition is expansive, not limiting of the definition only to the average water level derived mathematically as the Applicant contends. The area of the bed must be no less than the average water level, which is really specifying a minimum level, and also includes high points where the river covers the soil in the channel without taking into account freshets.

21 As a general rule of statutory construction words should be interpreted so that all are given meaning and effect, per Commonwealth v Baume (1905) 2 CLR 405 at 415 per Griffith CJ. The Council’s construction of the definition is consistent with this rule.

22 It is agreed that “bank” must be defined as a single point as that is necessary to enable the measurements in cl 30(1) and (2) of the LEP to be made. The bank must be, in order to give meaning and effect to these provisions of the LEP, a readily identifiable and ascertainable feature on the land. The definition of “bank” means upper limit of the bed (emphasis added).

23 The context of the relevant provisions in the LEP also supports such a construction as these are directed to the conservation of areas along the Murray River. Clause 10(1)(g) and cl 30 are both properly identified as protective controls which require a measurable point for the bank to enable the relevant distances from where development may occur to be calculated.

24 The provisions of the LEP as a whole support a construction which favours protection as it is directed, inter alia, to the purpose of preservation of the Murray River. Clause 2 of the LEP includes:

2 Aims, objectives etc
The general aims of this plan are:
(a) to encourage the proper management, development and conservation of natural and man-made resources within the Shire of Murray by protecting, enhancing or conserving:
…
(vi) the bed and banks of the Edward, Murray and Wakool Rivers.
…

25 Comserv and Alabama v Georgia have no bearing on the issues relevant to the preliminary question.

Finding

26 Provisions in a statutory instrument must be considered in the context of that instrument, in light of its purposes. Section 33 of the Interpretation Act 1987 applies to environmental planning instruments (EPIs) by operation of s 5(6). Section 33 provides that:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

27 Part 3 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) deals with the making of EPIs which includes local environmental plans. Pursuant to s 26 an EPI may make provision for, inter alia, protecting, improving or utilising the environment to the best advantage and controlling development.

28 The Applicant’s construction of the definition of “bed”, and therefore “bank”, is incorrect. As the Council submitted, one difficulty with the Applicant’s approach is that it gives the initial words of the definition (“means the whole of the soil of the channel in which the river flows”) no work to do. Further, no basis apart from the necessity of identifying a single point for the bank is provided by the Applicant at to why its restrictive definition of “bed”, and hence ”bank”, should be adopted. There is nothing in the text of the definition of “bed” to suggest that “including” means excluding everything else. Nor is there any basis for arguing that “and” is inclusive so that the most restrictive interpretation, that the limit of bed is the average or mean water level, is correct. Additionally the Applicant’s construction results in there being no difference in the area defined in the LEP as the bed of the river and that defined as the bank, an unlikely outcome in my view as it gives the definition of bank no work to do.

29 A construction which gives each definition a purpose is preferable where it otherwise accords with the scheme of the LEP. As identified in Statutory Interpretation in Australia, D C Pearce and R S Geddes 6th ed LexisNexis, Australia, 2006 at [2.22], a general principle of statutory interpretation is that courts are not at liberty to consider any word or sentence as superfluous or insignificant. All words must prima facie be given some meaning and effect. This approach is identified in Commonwealth v Baume, which decision the Council relied on as supporting its construction of each part of the definition of “bed”. The principle has been applied more recently by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Hayne JJ.

30 The Council’s approach to the definition of “bed” is that it can be defined by its physical form as provided in the initial words, which refer to the soil of the channel in which water flows, and to a mathematical calculation which enables a single point to be identified where there is no clearly defined physical channel which is circumscribed by the words in the definition of bed after “including”. It is relevant when considering the definitions, as the Council submitted, that these must be applied to any of the rivers which are the subject of the LEP. These will be found in varying physical forms. In some cases the channel of the river will be clearly identifiable by its physical form and in other cases not. The Applicant’s counsel submitted that because there was no evidence that rivers will have clearly defined banks in one place and no discernible banks in another that the Council’s submissions to that effect in support of its construction of “bed” are not supported. Common sense suggests that the Council’s submission is relevant and important in the consideration of the definitions before me. Specialist evidence that river channels come in different shapes and sizes is not necessary to support such a submission.

31 The Council’s approach to construction does give effect to each part of the definition of “bed” including the important initial words “means the whole of the soil of the channel in which the river flows”. The construction of the definition of “bed” proposed by the Council is correct for all the reasons identified in the summary of its submissions identified in pars 19-24. As identified in s 33 of the Interpretation Act, a construction which promotes the purpose of an instrument is to be preferred. I wish to particularly emphasise that the objects of the LEP as defined generally in cl 2 and as defined specifically in relation to land zoned rural in cl 9 are aimed in part at the protection of the Murray River. Part of that protective approach is reflected in the controls for development along rivers as found in cl 10(g) and in cl 30 of the LEP. The latter prevents specified development within specified distances of the river. Clause 30(2)(b) prevents consent for development within 60m of the bank of the river unless the Council has formed certain opinions concerning whether it is ancillary or to be used for certain specified purposes (subsections (c) and (d)). This suggests that a more expansive approach to the construction of bank where that results in a better protective outcome is appropriate and hence to “bed”, given that “bank” is defined as the limit of the bed. That confirms the approach of the Council that “limit” in the definition of “bank” means upper limit.

32 I therefore find that the upper limit of the whole of the soil of the channel in which the river flows (the “bed”) is the top of the soil in the channel, clearly defined by its physical form in this location along the Murray River. This is referred to as the “high bank” in condition 9 of the development consent conditions. If there were not a clearly identifiable channel such that the initial words of the definition of “bed” could not be applied then the upper limit of the bed would have been the highest point to which the water level rose as the water supply increased and decreased, excluding any level resulting from freshets. That point must be higher than the average or mean water level stage because an average or mean level can only be derived from the measurement of higher and lower water levels as demonstrated at p 385 of the tender bundle where the measurements used in the calculation of the agreed average or mean stage of water level are identified.

33 The Applicant’s counsel relied heavily on Comserv and Alabama v Georgia to support its construction of the definitions of “bed” and “bank”. These decisions were said to be persuasive in supporting the Applicant’s approach to construction. In Comserv a declaration was sought as to the location of a common boundary between two lots of land adjacent to a creek. The common boundary was described in certificates of title as the “western bank”. Bryson J stated at [9] that when the plan of survey, which became the relevant deposited plan, was prepared it is probable that the surveyors were influenced by the meaning of “bank” in the Crown Lands Consolidation Act 1913. This Act defined bank as “the limit of the bed of any lake or river”. “Bed” was also defined in similar terms to that in cl 5 in the Murray LEP. Bryson J considered at [10] that both definitions were adapted from the US Supreme Court decision in Alabama v Georgia. Bryson J stated at [59] that it was necessary to interpret the meaning of bank as it was used in the deposited plan by considering evidence about the facts and circumstances surrounding the preparation of the plan including the physical features of the land when it was prepared, and field notes or observations of surveyors in creating the plan. Consequently Bryson J at [9] and [57] accepted that the definitions in the deposited plan were based on the same understanding of the US Supreme Court in Alabama v Georgia because the definition from the US decision formed the basis of the definition in the Crown Lands Consolidation Act which in turn was in the mind of the creator of the relevant deposited plan.

34 Alabama v Georgia concerned the delineation of the boundary between two states in the United States of America. The bed of the river was defined by the court in the following terms by Wayne J at 515:

the bed of the river is that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn

From this it followed at 515:

The western line of the cession on the Chatahoochee river must be traced on the water line of the acclivity of the western bank, and along that bank where that is defined; and in such places on the river where the western bank is not defined, it must be continued up the river on the line of its bed, as that is made by the average and mean stage of the water

35 I note that the definition of “bed” in Alabama v Georgia is in similar terms to the definition in cl 5 in the LEP. I also note that the reasoning in the above paragraph appears to favour the Council’s interpretation of the definition of bed as it recognises the physical form of the river bank and then, where that is absent, the mathematical approach of “the average and mean stage of the water”. In any event, the decision in Alabama v Georgia while of historic interest has no bearing on the construction of the definitions in cl 5 of the Murray LEP. Nor does the decision in Comserv as it is dealing with an entirely different factual and legal scenario to that before me, namely the meaning of bank in a deposited plan (as identified in the brief summary of facts in par 33). There is no evidence before me to support the submissions of the Applicant’s counsel that the approach to these words in the LEP by the Council and the Minister for Planning was influenced by the 1859 US Supreme Court decision. It is inherently unlikely in the absence of any evidence. Neither case considered any matter with a similar statutory context to the Murray LEP made under the EP&A Act before me.

36 The Council has been successful in its arguments. I therefore find that the development sought by the Applicant involves, on land zoned 1(a), the construction of buildings within 60m of any bank of the Murray River, which buildings are not ancillary to the use of the land for the purpose of a recreation area or to be used for the purpose of fisheries, irrigation works, marinas, utility installations or the servicing of vessels and so consent cannot be granted under cl 30(2) of the Murray LEP without an objection under SEPP 1 and the concurrence of the Minister for Planning.