Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council

Michael Brown Planning Strategies Pty Ltd (the applicant) sought leave to appeal against a decision of the Land and Environment Court of New South Wales, which had dismissed its appeal against Wingecarribee Shire Council's (the respondent) refusal of a development application. The dispute concerned the interpretation of clause 7.9(3)(a) of the Wingecarribee Local Environmental Plan 2010 (LEP), which required that a proposed development "is compatible" with the flood hazard of the land. The applicant contended that future measures to ameliorate the flood hazard should be considered when assessing compatibility, while the Council argued that only existing conditions were relevant at the time of determining the application.

The primary legal issue before the Court of Appeal was whether clause 7.9(3)(a) of the LEP required the assessment of compatibility with the flood hazard to be made by reference to the conditions existing at the date of the determination of the development application, or whether it permitted consideration of future measures intended to ameliorate that hazard. This involved a question of statutory interpretation, specifically concerning the grammatical tense used in the clause and its implications for the temporal scope of the assessment.

The Court of Appeal, in dismissing the appeal, reasoned that the phrase "is compatible" in clause 7.9(3)(a) referred to the state of affairs at the time the development application was being determined. The Court held that future measures, not yet implemented or guaranteed, were not part of the development application itself and therefore could not be considered when assessing compatibility with the flood hazard as required by the LEP. The Court emphasised the importance of the immediate context and the consistent operation of the LEP, concluding that a contextual construction of the clause supported this interpretation. The Court also noted that reliance on dictionaries for statutory interpretation, while sometimes useful, was not determinative in this instance.

The Court of Appeal granted the applicant leave to appeal on the proposed question of law but ultimately dismissed the appeal, ordering the applicant to pay the Council's costs.