Vanmeld Pty Limited v Fairfield City Council

[2000] NSWCA 51

Reported Decision: 106 LGERA 454

New South Wales

Court of Appeal

CITATION:	Vanmeld Pty Limited v Fairfield City Council [2000] NSWCA 51
FILE NUMBER(S):	CA 40028/99
HEARING DATE(S):	29 February 2000
JUDGMENT DATE:	22 March 2000
PARTIES :	Vanmeld Pty Limited (Appellant) Fairfield City Council (Respondent)
JUDGMENT OF:	Stein JA at 1; Heydon JA at 40; Rolfe AJA at 41

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40077/97
LOWER COURT JUDICIAL OFFICER :	Sheahan J

COUNSEL:	B Rayment QC/ E M Strasser (Appellant) J Webster (Respondent)
SOLICITORS:	Jennifer E Darin (Appellant) Deacons Graham & James (Respondent)
CATCHWORDS:	LAND AND ENVIRONMENT COURT - class 4 application - Environment and Planning Law - words and phrases - 'floodway' - Fairfield Local Environmental Plan (1994) - whether Court properly construed definition of 'floodway' - use of extrinsic material - whether divided floodwaters form two flow paths. D
LEGISLATION CITED:	Fairfield Local Environmental Plan 1994
CASES CITED:	Black v Shaw (1913) 33 NZLR 194 Gough v Gough [1891] 2 QB 665 Re Licensing Ordinance (1968) 13 FLR 143
DECISION:	Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40028/99

LEC 40077/97

STEIN JA
HEYDON JA
ROLFE AJA

Wednesday, 22 March 2000

VANMELD PTY LIMITED v FAIRFIELD CITY COUNCIL

Background

In a class 4 application to the Land and Environment Court, the appellant sought a declaration that none of its land is within a floodway under the Fairfield Local Environmental Plan 1994 (the LEP), or alternatively a declaration identifying what portions of the land are within a floodway.

The subject land is about 12ha, and known as the Magic Kingdom Amusement Park. It is bounded by Prospect Creek to the east. The Chipping Norton Lake area and the Georges River lie about 1km to the west. The background to the application is a pending class 1 appeal against the deemed refusal by the respondent Council, of an application to place fill on the land.

The matter was heard but adjourned, to allow further evidence to be adduced before the trial judge. At the conclusion his Honour declared that not less than 45% of the area proposed to be filled on the subject land was within a floodway as defined in the LEP.

The appeal

The Notice of Appeal maintains that the trial judge erred in his construction of ‘floodway’ in the LEP and in relying on extraneous definitions. The relief sought is a declaration ‘that the main flow of flood waters lies between the northern end of the water slide ramp [on the land] and Prospect Creek which is the limit of the floodway’ on the site.

At the hearing Counsel for the appellant sought to add a new ground to the effect that the trial judge erred in failing to hold that no part of the subject land fell within a floodway as defined in the LEP.

The alternative submission of the appellant set out in its written submissions, is that the main flow over the subject land is exclusively the flow between the waterslide on the land and Prospect Creek. The appellant submits that there are two flows, divided by the slide and since the smaller flow is allegedly to the west of the slide, the main flow path of the floodwaters is to the east.

Held (Stein JA, Heydon JA, Rolfe AJA agreeing):

1. The proposed amendment to the Notice of Appeal be refused as it is based on an interpretation of the definition in the LEP which does not appear to have been submitted below and may have involved additional evidence. The submission is nonetheless untenable. While ordinary rules of construction make the LEP definition exhaustive, the trial judge used extraneous materials not in construing, but in applying, the definition.

2. The flood waters split in certain proportions around the slide, but this does not constitute two flood paths. These flows constitute the main flow path for flood waters and together form the floodway. The main flow path is not limited to a single path of water.

3. Appeal dismissed with costs.
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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40028/99

LEC 40077/97

STEIN JA
HEYDON JA
ROLFE AJA

Wednesday, 22 March 2000

VANMELD PTY LIMITED v FAIRFIELD CITY COUNCIL
JUDGMENT

1    STEIN JA:

Introduction:

2    In a class 4 application to the Land and Environment Court the appellant, Vanmeld Pty Limited, sought a declaration that none of its land in Hollywood Drive, Lansvale is within a floodway under the Fairfield Local Environmental Plan 1994 (the LEP). In the alternative, it sought a declaration identifying what portions of the land are within a floodway. 3 The subject land comprises about 12ha bounded by Prospect Creek to the east, Hollywood Drive to the west and a residential area to the north. The Chipping Norton Lake area and the Georges River lie about 1km to the west. The site is known as the Magic Kingdom Amusement Park.

4    The background to the application is a pending class 1 development appeal brought by the appellant against the Council’s deemed refusal of its application to place fill on the land.

5    After an initial hearing extending over three days, together with a view, Sheahan J gave judgment on 19 December 1997 which did not finally conclude the matter. His Honour refused to make the principal declaration sought. In so doing, his Honour said that he was satisfied that some of the appellant’s land was within a floodway but the evidence did not permit its identification with any precision. Rather than dismiss the application, his Honour adjourned the proceedings giving the parties the opportunity to consider if further evidence should be adduced. 6    The matter returned to the Court in February 1998 when the parties disputed what should happen to the application still before the Court. In a ruling given on 29 May 1998, his Honour again declined to dismiss the application altogether. He also refused to determine a number of separate questions proposed by the appellant. His Honour stood the matter over, again giving the parties leave to adduce further evidence. The matter was relisted for hearing in November 1998, additional expert evidence being called by the parties. His Honour gave judgment on 15 December 1998 which finally disposed of the proceedings. His Honour declared that:

… the area of the subject land that is within a floodway as defined in the Fairfield Local Environmental Plan 1994 is not less than the area marked on Figure W1 in Exhibit 22 , which represents an area of approximately 45% of the area to be filled as shown on attachment “A” to the Supreme Court Orders dated 20 June 1997 in proceedings 55080/94.

7    The Notice of Appeal maintains that his Honour erred in his construction of the word ‘floodway’ in the LEP and in relying on extraneous definitions. The relief sought is a declaration ‘that the main flow path of flood waters lies between the northern end of the water slide ramp [on the land] and Prospect Creek which is the limit of the floodway’ on the site.

The LEP

8    The appeal centres around the construction of the word ‘floodway’ in the Dictionary to the LEP. The definition is:

“Floodway” means the channel of a river or stream and those portions of the flood-plain adjoining the channel which constitute the main flow path for floodwaters.

9    The Dictionary does not define ‘flood-plain’ although it defines ‘flood-liable land’ by reference to flood maps held by the Council. 10    ‘Floodway’ is referred to in cl 13(3) of the LEP which states that ‘A person must not place fill in a floodway in Zone 6(d) (the Recreation Tourism zone) in Lansvale’. The subject land is zoned 6(d) and is in Lansvale. One of the aims and objectives of the LEP is to restrict development on land adversely affected by natural or man-made hazards.

The appeal

11    In his opening remarks Mr Rayment QC, appearing on behalf of the appellant, submitted that no part of the subject land is in a floodway. This was put on the basis of the assertion that 90% of a flood from Prospect Creek would flow within the channel of the creek itself. 12    The Court pointed out that no ground in the Notice of Appeal appeared to encompass the submission, nor was any relevant relief claimed. 13    Counsel then sought to add a new ground of appeal to the effect that his Honour erred in failing to hold that no part of the subject land fell within a floodway as defined in the LEP. The respondent opposed the amendment. The Court indicated that it would defer deciding on the application until reasons for judgment were given, there being concern on our part that the argument had never been put to his Honour. 14    The alternative submission of the appellant is as set forth in its written submissions. That is, that the main flow path over the subject land is exclusively the flow between the waterslide on the land and Prospect Creek. 15    The error made by his Honour was, according to the appellant, impermissibly construing the definition of floodway by reference to extraneous documents and definitions. This, so it is contended, lead his Honour to ask himself the wrong questions. If he had not taken the extrinsic materials into account, it is submitted that he would have viewed the expert evidence differently. 16    By way of demonstrating the error, the appellant pointed to a portion of his Honour’s reasons for judgment of 15 December 1998:

Consequently, as I intimated in my December 1997 judgment, it is useful to refer to other definitions/indicators of what constitutes a floodway to quantify more precisely how much of the water flowing over the land could be considered as constituting “the main flow path” and consequently a “floodway” for the purposes of the LEP definition.
Consideration

17    I do not think that the proposed amendment to the Notice of Appeal should be granted. It is based upon an interpretation of the definition in the LEP which does not appear to have been submitted below. Had it been part of the appellant’s case, additional evidence may have been forthcoming from the Council. Not only was it not included in the grounds of appeal, no relief appropriate to the point was sought in the Notice of Appeal. Nor was it included in the appellant’s extensive written submissions on appeal. True it is that it had some support in the original report of Mr Gray. However, Mr Gray’s concept was abandoned by another expert engaged by the appellant, Dr Carr. In addition, it may be noted that the proposition put by the appellant involves the flooding of Prospect Creek only (scenario 1). That is but one of three scenarios canvassed in the evidence. Scenario 2 is when Georges River breaks its banks first and scenario 3 when both Prospect Creek and Georges River flood at the same time. The appellant should be bound by the way it put its case below. 18    While I am of the opinion that the amendment ought not be permitted, I propose to make some brief remarks on the construction of the definition of floodway which indicate that the submission is, in any event, untenable. 19    In my opinion, the construction urged on the Court by the appellant must involve reading the conjunctive ‘and’ in the definition of floodway as ‘or’. Indeed, Mr Rayment confirmed this in his submission. I do not agree. To read ‘or’ for ‘and’ would mean that when Prospect Creek broke its banks, in flood, there would be at least two flow paths for floodwaters. One in the channel itself and one on the adjoining flood-plain, even though they are part of one mass of water. Pursuant to the definition, viewed in the fashion urged on the Court by the appellant, one of these flows would constitute ‘the main flow path’ and the other would not. Assuming the channel of the creek was the main flow path, then the adjoining inundated areas of the flood plain, flooded from the creek overflowing its banks, would not be in a floodway. This demonstrates the artificiality of such a concept. It cannot have been intended by the drafter of the LEP. 20    The preferable interpretation is arrived at by the application of the ordinary rules of construction. That is, that the definition is cumulative and not in the alternative. This is consistent with the context of the LEP. Floodway means the channel of the river together with those portions adjoining the channel (being part of the flood-plain) which constitute the main flow path of the floodwaters. 21    As a matter of ordinary construction ‘and’ means ‘and’ and not ‘or’. It is conjunctive and not disjunctive. 22    Only in very narrow circumstances will a Court modify the language of a provision to read ‘or’ for ‘and’ or vice versa. The first circumstance is where the legislature has made a mistake and used the incorrect conjunction. This cannot be here concluded. There is no reason to suggest that the drafter of the definition made a mistake in using the conjunction. 23    The second situation is where there is a list of items joined by ‘and’, and the provision is clear that the list is one of alternatives, see Re Licensing Ordinance (1968) 13 FLR 143 at 147. That is also not the case here. Beyond these circumstances, the Courts will rarely treat ‘and’ and ‘or’ as interchangeable. 24 In approaching the LEP definition, the first thing to note is that it uses the word ‘means’, not ‘includes’ or ‘means and includes’. Use of the word ‘means’ limits the meaning to that set out in the definition. If the ordinary meaning is different, it is discarded. It makes the definition ‘hard and fast’ and rigidly defines and limits the meaning to the exclusion of other meanings. The definition is exhaustive. See, eg Gough v Gough [1891] 2 QB 665 and Black v Shaw (1913) 33 NZLR 194. 25 Accordingly, Sheahan J could not call dictionaries in aid if the statutory definition varied from the ordinary meaning. Likewise, definitions in other instruments or documents could not be utilised. However, for reasons I will discuss, I do not think that his Honour so erred. 26 Although his Honour’s reasons are to be principally found in his final judgment, which was given after further expert evidence was adduced, the initial judgment contains some discussion on construction of the LEP definition. 27 His Honour said that the LEP definition should be given its literal meaning. However, because of the generality of the definition, questions arose as to how it should be applied. The answers to its practical application were clearly not to be found in its text. What I understand his Honour to be saying is that, in these circumstances, assistance in its application may be found in other documents. 28 This approach appears more explicitly in Sheahan J’s final judgment. Having set out the LEP definition, his Honour noted:

However, for the purpose of precisely identifying those portions of land which fall within a floodway, the definition is somewhat limited, because it is difficult to pinpoint a specific line on the ground where the volume or depth or speed of the flood waters is so reduced as to remove that area from the definition.

29    His Honour continued that in these circumstances it was useful to refer to ‘other definitions/indicators’ to be able to quantify ‘more precisely’ what constituted the main flow path for the purposes of the LEP definition. 30    He continued:

These alternative definitions do not, in my opinion, displace or contradict the LEP meaning; they simply enable it to be applied with more precision.

31    The references which follow to the 1986 Floodplain Development Manual and the 1990 Lower Prospect Creek Floodplain Management Study make his Honour’s approach plain. See also Red AB 55 - 56 (paras 44 and 45). 32    I do not think that Sheahan J erred in the context in which he referred to the documents. They were referred to in the task of applying the LEP definition, not construing it. 33    In any event, the approach of the appellant is an artificial one. Because of the existence of the waterslide on the appellant’s land, the appellant submits that there are two flows, divided by the slide. Since the smaller flow is allegedly to the west of the slide, the main flow path of the floodwaters is to the east of the slide. 34    In the initial judgment his Honour said that ‘the main flow’ referred to the mainflow of the flood as a whole. I think that his Honour was correct to do so. The ‘main flow’ path in the definition is not limited to a single path of water. As his Honour said, reference to ‘those portions’ in the definition assists in indicating that there may be more than one part of the floodplain where the main flow occurs. 35    It seems to me to be illogical, if not ludicrous, to suggest that because the floodwaters split in certain proportions around the waterslide, situated in approximately the middle of the site, this constitutes two flood paths. The commonsense answer is that these flows constitute the main flow path for floodwaters and together form the floodway. Again, this was his Honour’s conclusion and is consistent with the LEP definition. Before it reaches the water slide, the flood covers the whole of the site with one flow path, and after it is dissected by the slide it immediately reforms into one flow, covering the whole of the land. Indeed, the evidence shows that for 90% of the site, the waterslide does not bisect the flow path of the floodwaters. Just because the floodwaters flow around the water slide does not create any division in the flow. Merely because the water slide dissects about 10% of the floodwaters on the land and water flows at a greater volume on one side of the slide than the other, cannot dictate the meaning of 'floodway' for the 90% balance of the land. This is also consistent with his Honour's conclusion. 36    Indeed, on scenario 3, 98.3% of the area proposed to be filled would be flooded to a depth of 3m or more and 48.6% would be flooded to a depth of 4m or more. The artificiality of the appellant’s submission is demonstrated by examining the evidence relating to scenario 1. Scenario 1 starts with floodwaters entering the land through the whole of the northern boundary at a velocity of 170m/sec, dividing around the waterslide at 70m/s to its west and 95m/s to its east and reforming over the whole of the site, passing over it until reaching across the southern boundary. 37    In the practical application of the definition of floodway by his Honour, I see nothing wrong with his approach. Volume, depth and velocity must all be relevant for the purposes of determining a line on the ground identifying those portions of the land within a floodway. That is what his Honour had been asked to do by the appellant. Indeed, those factors seem to be consistent with the submissions and evidence relied on by the appellant before Sheahan J. 38    In my opinion, his Honour’s decision that not less than 45% of the area proposed to be filled on the subject land was within a floodway as defined in the LEP was one which was open on the evidence and ought not be disturbed. Certainly, in coming to this factual conclusion, he made no error of law. 39    The appeal should be dismissed with costs.

40    HEYDON JA: I agree with Stein JA.

41    ROLFE AJA: I agree with Stein JA.

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