Land and Environment Court New South Wales Medium Neutral Citation: Imbree v Sutherland Shire Council [2012] NSWLEC 1293 Hearing dates: 11, 12, and 13 September 2012 Decision date: 13 September 2012 Jurisdiction: Class 1 Before: Moore SC Decision: Appeal dismissed - see para (17) Catchwords: Deeming provisions; mean high water mark Legislation Cited: Sutherland Shire Local Environmental Plan 2006 Category: Principal judgment Parties: P A and PJ Imbree (Applicants) Sutherland Shire Council (Respondent) Representation: Applicants in person Mr C McEwen SC Mr M Staunton Barrister (Respondent) HWL Ebsworth (Respondent) File Number(s): 10377 of 2012 EX TEMPORE Judgment 1SENIOR COMMISSIONER: There are a number of matters from Victorian English literature that have been reflected in the laws of New South Wales. Two of them come from the writings of Lewis Carroll, the first from the remarks of the Queen of Hearts in Alice's Adventures in Wonderland where the queen repeatedly cried, "Off with her head," or, "Off with their heads", in one instance saying, "Sentence first, verdict afterwards". The second comes from the same author's writings in chapter 6 of Through the Looking Glass in an exchange between Alice and Humpty Dumpty, when Humpty Dumpty says, "When I use a word it means just what I choose it to mean, neither more nor less." 2The first of the propositions, "Off with her head", was rectified in its entirety by the removal of the last vestiges of the death penalty, from New South Wales legislation by the Crimes (Death Penalty Abolition) Amendment Bill in 1985, a piece of legislation coincidentally introduced by my colleague (then Attorney-General and now) Sheahan J of this Court which I, then in opposition, had the pleasure of supporting. 3The second of them, however, the concept that words mean just what they choose to mean, is reflected in the provisions of cl 17 of the Sutherland Shire Local Environmental Plan 2006, at subcl 6, where there is a provision that reads: The deemed mean high water mark in relation to land means the mean high water mark or high water mark as shown on any plan relating to that land that was registered with the registrar general on or before 24 April 1980, being a plan that was current at that date. 4There are three plans that need to be considered, relevantly, for interpretation of that provision. They relate to three adjacent allotments with water frontages at Rutherford Avenue at Port Hacking. 5The first of them relates to lot 19 (as it then was) in Deposited Plan 10703. By a subsequent deposited plan, that allotment - to the southwest of the allotment that is the subject of these proceedings - was subdivided and, as a consequence, became depicted in Deposited Plan 550640. This involved a redefinition, amongst other things, of the location of the mean high water mark at the Port Hacking frontage of what had originally been lot 19 in Deposited Plan 10703. 6For the purposes of this matter, I am invited by Mr Imbree to have regard to the location of the mean high water mark for his property, that being that which was lot 20 in Deposited Plan 10703 and is now lot 10 in Deposited Plan 1164099, which also shows the mean high water mark where it is physically located. 7The Humpty Dumpty-esque element of these proceedings comes from the fact that DP1164099 was not in existence on or before 24 April 1980, that being the date relevant for the purposes of cl 17 subcl 6. The mean high water mark shown on Mr Imbree's property from DP10703 is some 20 m in the air above mean high water mark and a considerable distance inland of the edge of the cliff. 8The adjacent property to the northeast, lot 21 in DP10703, also has the mean high water mark shown on that plan as being some 20-plus m in the air and a similar distance inland from the actual mean high water mark to that as shown for Mr Imbree's property in the original deposited plan. 9I have reached the conclusion that, taking Mr Imbree's submissions at their highest - that is, that I should take his mean high water mark being where the mean high water mark presently is located as the appropriate distance to be used as one of the measuring points for the purposes of cl 17(3)(a)(i), this being, the drawing of a line across the land that is parallel to and the distance specified on the map from that deemed high water mark, Mr Imbree's case in the first of the matters that is before me, (that is matter 10377 of 2012) must necessarily fail. 10The reason for that is that, unless and until Mr Imbree's neighbours who own lot 21 of DP10703 apply to have the high water mark shown on DP10703 located at its correct point, I am obliged, as a matter of law, to regard the mean high water mark as running some 20 m or so along the common boundary between Mr Imbree's property and the property immediately to the northeast, despite the fact that that notional location of the mean high water mark is in itself some 20 m in the air and some distance removed from reality. 11I am obliged to so consider as a matter of fact, one might well say, as a further Victorian author put it in Oliver Twist when Mr Bumble says, "The law is an ass", nonetheless I must apply the law as it stands. 12The consequence of that is that the mean high water mark (taking Mr Imbree's case at its highest) runs along the boundary shown as the mean high water mark in Deposited Plan 550640, and that being the actual mean high water mark, continues along the mean high water mark shown in Deposited Plan 1164099, that also being the actual mean high water mark, but at the end of that allotment takes an almost right angle turn up the cliff and inland along the boundary between Mr Imbree's property and lot 21 on DP10703, before it turns to follow the boundary that is depicted as the mean high water mark on lot 20 in DP10703. 13The consequence of that is that the foreshore building line that gets created by the operation of cl 17 of the LEP must have regard to the fact that there is an acute angle turn some 20 metres or so inland at the point where the nominal foreshore mean high water mark for lots 21 and Mr Imbree's property intersect. That means that I am satisfied, without needing to go to the precise mathematical precision of it, that the mean high water mark foreshore building line thus derived is shown in ex 14 as being the third of the lines that are offered, that is, the varied foreshore building line based on mean high water mark from DP1164099 which includes an arc that bisects the present dwelling before then turning in a fashion across the centre of the present dwelling to the south-western boundary. 14The consequence of that is that there is a considerable portion of the structure proposed to be constructed in matter 10377 of 2012 that is forward of the foreshore building line. That engages the terms of another provision in cl 17 of the Local Environmental Plan, particularly the provisions of subcl 8 and 9. 15That which is proposed in the application constitutes alterations and additions to the existing dwelling. Again, taking the applicant's case at its highest, I do not need to determine whether the changes to the existing dwelling are so substantial that they should not be regarded as additions but should be regarded as the construction of a new dwelling because, again taking Mr Imbree's case at its highest, on the view I consider I am obliged to take of where is the foreshore building line, Mr Imbree's case must fail. That is as a consequence of cl 17(9)(b)(i). 16There is no doubt in my mind that the external balcony areas that are proposed at various levels of the additions and alterations to the present dwelling on the allotment will be erected further forward of the foreshore building line than the existing dwelling that is located on the land. 17As a consequence of all of that, it is inevitable, again taking the applicants' case at its highest, on a proper construction of the location of the foreshore building line, in my view that the orders in matter 10377 of 2012 must be that the appeal is dismissed and that development consent for the erection of construction of additions and alterations to the existing dwelling must be determined by the refusal of development consent. Tim Moore Senior Commissioner of the Court 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. Decision last updated: 23 October 2012