Imbree v Sutherland Shire Council [2013] NSWLEC 145

Imbree v Sutherland Shire Council [2013] NSWLEC 145

The language of clause 17(6) of the LEP is unambiguous: the 'deemed mean high water mark' is as shown on the current plan registered prior to 24 April 1980 (here, DP 10703); this supports the Senior Commissioner's construction. The foreshore building line is parallel to and a prescribed distance inland from this line. Despite any factual anomaly or external inconsistency revealed by later plans, the only lawful source for the HWM, for LEP purposes, is DP 10703. Any inadequacy in the Senior Commissioner's reasons does not rise to an appealable error under the legal standard, and the correct legal outcome is refusal of the appeal.

Jurisdiction
Australia
Judgment Date
09 September 2013
Procedural Posture
Appeal / Judgment on Appeal From Two Senior Commissioner Decisions Under S 56 a Land and Environment Court Act 1979
Outcome
Appeal dismissed
Legal Topics
['local Environmental Plan Construction' 'foreshore Building Line' 'statutory Interpretation' 'deeming Provisions']
['environmental Law' 'planning Law'] ['local Environmental Plan Construction' 'foreshore Building Line' 'statutory Interpretation' 'deeming Provisions']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Two Senior Commissioner Decisions Under S 56 a Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Senior Commissioner misconstrued clause 17(3) of the Sutherland Shire Local Environmental Plan 2006 regarding 'deemed mean high water mark'." 'Whether adequate reasons were given for the construction and application of the LEP provisions.' "Whether the proposed development or additions were 'further forward' of the foreshore building line than the existing dwelling."]

Ratio Decidendi

The language of clause 17(6) of the LEP is unambiguous: the 'deemed mean high water mark' is as shown on the current plan registered prior to 24 April 1980 (here, DP 10703); this supports the Senior Commissioner's construction. The foreshore building line is parallel to and a prescribed distance inland from this line. Despite any factual anomaly or external inconsistency revealed by later plans, the only lawful source for the HWM, for LEP purposes, is DP 10703. Any inadequacy in the Senior Commissioner's reasons does not rise to an appealable error under the legal standard, and the correct legal outcome is refusal of the appeal.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal against the two judgments of the Senior Commissioner is dismissed.' 'The question of costs is reserved.' 'Exhibits 14 and 15 are to be returned to the Class 1 appeal files, all other exhibits to the parties.']