Land and Environment Court of New South Wales CITATION : Barcoo Designs Pty Ltd v Sutherland Shire Council [1989] NSWLEC 41 APPLICANT Barcoo Designs Pty Ltd PARTIES : RESPONDENT Sutherland Shire Counci FILE NUMBER(S) : 20608 of 1987 CORAM: Stein J KEY ISSUES: :- Land and Environment Court Act LEGISLATION CITED: Local Government Act Interpretation Act CASES CITED: Cleaver v. Byron Shire Council ((1975) 31 LGRA 31) DATES OF HEARING: DATE OF JUDGMENT: 02/20/1989 APPLICANT Mr. Schofield LEGAL REPRESENTATIVES: RESPONDENT Mr. Graham JUDGMENT: HIS HONOUR: This is an appeal under s.56A of the Land and Environment Court Act against a decision of an Assessor dismissing an appeal against the refusal of a building application by the Council. The application was for the erection of a swimming pool at the rear of a dwelling on land at 54 Ingrid Road, Kareela, adjacent to Oyster Bay. The Assessor found that the proposed development was within a Waterways (7a) zoning under the Sutherland Planning Scheme Ordinance and was prohibited, the purpose falling within Col. V of the Ordinance. As a consequence he dismissed the appeal. I pause to interpolate that although the Notice of Appeal sought to raise the issue of the development being a "swimming enclosure" under Col. IV, and thereby permissible with consent, this was not pursued at the hearing. The appellant argues that the Assessor's finding was wrong in law and that at all material times the location of the proposed swimming pool was within a Residential 2(e1) zoning whereby the development is permissible with consent. The matter arises in a curious and perhaps somewhat unique way. The subject land (Lot 859) was part of Lot 847 in D.P.243651 which was subdivided in December 1972 by D.P.243686. This deposited plan shows the lot as having an area of 22 perches with its rear boundary defined by the mean high water mark on Oyster Bay. The Deposited Plan gave eastern and western boundary measurements of 120' and 107'4-1/8" respectively down to the mean high water mark. The Sutherland Planning Scheme Ordinance was gazetted on 24 April 1980. The scheme map forms part of the Ordinance. There is no dispute that the scheme map zoned the subject Lot 859 and nearby land as Residential 2(e1) and the adjacent waters of Oyster Bay as Waterways 7(a). The Assessor found on the evidence that "the boundary shown on the scheme map, which separated the 7(a) and 2(e1) zones, was the mean high water mark as fixed in D.P.243686, and which subdivision first created the subject land". This was undoubtedly a finding open to the Assessor and one which I do not understand the appellant to challenge. Prima facie one might think that as at the prescription of the Scheme the location of the proposed pool was within the waterways zone. However, in October 1986 the owner of Lot 859 succeeded in having the land redefined by Deposited Plan 735551. This Deposited Plan redefined the mean high water mark further down towards Oyster Bay by depths of 10.635m on the eastern boundary and 14.875m on the western boundary. The Deposited Plan shows the "original MHWM" as per D.P.243686 and a redefined mean high water mark. It is armed with this factual background that Mr. Schofield, on behalf of the appellant, submits that the site of the proposed swimming pool is within the residential and not the waterways zoning. He maintains that the Assessor made an error of law in concluding otherwise. The appellant argues that the MHWM was misdescribed on the title at the time the Scheme was made and this has since been corrected. He submits that the relevant boundary was always defined by the natural feature and that this natural feature has not changed. He further states that the Assessor misunderstood his submission. He says that he never submitted that the redefinition of the boundary changed or moved the zoning boundary or that the Court was being asked to "correct" the zoning. Rather, he says that on the evidence the land was always above the mean high water mark and no physical change has taken place. There had been an error which has now been corrected. Be that as it may the Assessor said in his Judgment at p.5:- "There appear to be several difficulties with Mr Schofield's argument. Firstly it is not clear that in fact the substantial change in position of the MHWM has been due to an original error. As previously set out, having regard to the definition of MHWM, changes of time, the computations involved and the dynamics of foreshore behaviour, it is not altogether surprising that the MHWM, at any place may be somewhat variable rather than absolutely fixed in time. It may be that the Crown Lands Office had been no more than persuaded, that the recently determined, in 1986, location of the MHWM as it affects this land, is more appropriate in 1986 circumstances than that previously shown in the plan of subdivision which created the original subject allotment in 1972. It may also be the case that some minor element of accretion may have been an imperceptible factor in the changed circumstances between 1972 and 1986." The appellant criticises these passages as being irrelevant and not directed to the relevant time of the scheme gazettal. Mr. Schofield also maintains that there was no evidence to support the finding relative to "some minor element of accretion". However, it seems to me that the Assessor's findings encompass the time of prescription and are not irrelevant. Furthermore, it appears that the findings of fact were reasonably open to the Assessor on the evidence. In particular the evidence of a Mr. Boler, a senior surveyor employed by the Council for 21 years. He was responsible for the preparation of the original survey plan. At p.8 of the transcript he said:- "BOLER: A: The planning scheme attempts to indicate high water mark at the time of the planning scheme and at the time it was in that location. I actually was involved in this development, we actually tendered for this site and I walked the whole site prior to its actually being developed. Q: When was that? A: About 1967/1968, I walked this whole site and we actually prepared this plan, this plan was actually my layout and I am aware of the natural features.." Mr. Schofield cross-examined Mr. Boler on this matter (pages 9-10 transcript):- "SCHOFIELD: Q: Would you agree sir that - I think you have told us already that the intention at the time of the gazettal of the Sutherland scheme was that the boundary between the residential land and the water way land be the mean high water mark? A: Yes. SCHOFIELD: Q: And you told us that you had some familiarity with this land a long time ago when it was subdivided? BOLER: I did yes. Q: You don't claim to remember this particular area of land do you? A: Not specifically that area but it does form a type of land formation-- Q: That's conjecture isn't it. That's conjecture on your part you don't remember this land when you look in days gone by? A: No but I do recognise the form that the land has." It seems to me that the evidence of Mr. Boler and also Mr. Carswell, a council planner, provides the basis for the Assessor's findings which cannot be disturbed on an appeal confined to errors of law. The Judgment of the Assessor continued:- "Secondly the variation in the position of MHWM as it affects the subject land, had to be approved by the appropriate authorities and the land title had to be officially altered. That variation was not an automatic consequence of a second surveyors opinion. It might also be noted that the variation to the MHWM which has been made, only affects the subject land and adjoining and nearby lands still enjoy the MHWM boundary as previously fixed. Thus if the zone were to be assumed to automatically follow a change in MHWM definition, than (sic) the zoning boundary as it presently exists would have a discontinuity at the subject site by way of a sudden projection of the residential zone into the Waterway zone. Apart from the projection on a map which may be of little practical consequence, the projection of actual development from a single allotment into the bay itself, may have some environmental consequences which should be properly assessed before any zoning boundary changes are made." In my opinion these statements were available to the Assessor and relevant observations. Whether or not the Assessor appreciated the full subtlety of the appellant's argument is neither here nor there. What is in issue in whether the Assessor made an error of law. Mr. Schofield seeks to call in aid s.34 of the Interpretation Act in the construction of the Scheme. He submits that the ordinary meaning to be applied to the Scheme map would lead to the result that, because of a survey error, part of the lot above the MHWM is zoned Waterway and not Residential. This he submits is "manifestly absurd or unreasonable". Section 34 permits the use of certain extrinsic material in the interpretation of an Act or statutory rule, (including an Ordinance (s.3)), where inter alia, the ordinary meaning conveyed by the text leads to a manifestly absurd or unreasonable result. However, I do not understand there to have been any objection to the receipt of any of the evidence called before the Assessor, nor his use of it in considering his decision. I fail to understand how it can be said that the purpose or objective of the Scheme is being frustrated by the ordinary meaning of the Ordinance. I cannot understand how s.34 assists the appellant. In any event I am unable to accept that the ordinary meaning to be attributed to the Scheme plan can be said to lead to a manifestly absurd or unreasonable result. Although he did not specifically say so I think that this reasoning is implicit in the Judgment. Indeed, if the submission of the appellant is correct it is possible that it may lead to an inconvenient if not absurd result. It may mean that scheme maps will not always mean what they apparently say. One may not always be able to rely upon them to delineate boundaries of zones. This could lead to uncertainty as to the zoning of land, a clearly undesirable situation. There is an undoubted public interest in people being able to rely on Scheme maps in order to identify zoning boundaries. The potential for notional "rezoning" of protrusions into waterways by title redefinition could lead to undesirable situations which may strike at the objective of Waterways zones - to protect the waterways. If land form changes or if survey mistakes are made they should be rectified by amendment of the planning scheme itself so that the public at large may rely on the scheme maps as delineating zonings and the boundaries between zones. On behalf of the respondent Council Mr. Graham seeks to distinguish Cleaver v. Byron Shire Council ((1975) 31 LGRA 31). The case concerned a claim for compensation pursuant to s.342AC(1)(h) of the Local Government Act based on an alleged error in a s.342AS zoning certificate issued by Council. In issue was the position of a zoning boundary line. Was the subject land inside or outside the village or township zone? A small scale map of the whole of the Shire appeared to indicate that the land was within the village zone. However, a large scale map, if drawn to scale, indicated that the land was outside the village zone, the boundary not corresponding with the natural feature and the position of the high water mark along the ocean foreshore and creek. However, Waddell J. concluded that the map showed a natural feature near the subject land, a spit, which indicated the boundary of the zone so as to include the plaintiff's land. It seems to me that Cleaver's case is of little assistance in the instant situation. U nlike Cleaver the Court is not involved in a scaling off from a map or plan. Rather, this matter involves actual surveys and deposited plans and all the surveying evidence before the Assessor accepted that the zoning boundary was as per D.P.243686. In any event, unlike the instant case, Cleaver's case involved no adjoining zoning on the other side of the boundary. The context and facts of the case are quite distinct and I accept that Cleaver's case is distinguishable. It provides little assistance in approaching the present problem of the delineation of the zoning boundary between the Residential and Waterways zone. I am unable to discern any error of law on the part of the Assessor. In the circumstances the appeal is dismissed with costs and the order of the Assessor dismissing the application is confirmed. The exhibits may be returned. However, the dismissal of the appeal does not leave the appellant without possible recourse. The situation is still capable of rectification if that be necessary. For example, the owner could approach the Council to rezone the portion of his land as Residential or seek to take advantage of the review of the Scheme required by Cl.92. Alternatively, it may be open to the owner to seek to proceed by way of prohibited development. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.