Posted on February 22, 2016 by
Inconsistent requirements of DCP of no effect in unlawful land clearing case
In a recent decision, the Court of Appeal dismissed an appeal against Shoalhaven City Council’s claim that a landowner carried out unlawful clearing of land. The decision confirmed that the provisions of the relevant development control plan, argued by the landowner to exempt the clearing, were inconsistent with the provisions of the Council’s LEP and therefore of no effect.
Lindsay Taylor Lawyers acted successfully on the Council’s defence of the appeal.
In 2015, the Applicant (Elachi) carried out tree and vegetation clearing on his land in Callala Bay (Land).
Shoalhaven City Council (Council) commenced proceedings in the Land and Environment Court, alleging a breach by Elachi of s 76A of the Environmental Planning and Assessment Act 1979 (EPA Act), being the carrying out of development without requisite consent.
Clause 5.9 of the Shoalhaven Environmental Plan 2014 (LEP) relevantly provided as follows:
5.9 Preservation of trees or vegetation
(1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.
(2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purpose of this clause by a development control plan may by the Council.
(3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:
(a) a development consent, or
(b) a permit granted by the Council.
(8) This clause does not apply to or in respect of:
(a) the clearing of native vegetation:
(i) that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003, or
(ii) that is otherwise permitted under Division 2 or 3 of Part 3 of that Act,
…(9A) Subclause (8) (a) (ii) does not apply in relation to land identified as “Cl 5.9”on the Clauses Map.
Shoalhaven Development Control Plan 2014 (DCP) prescribed the trees and vegetation to which the prohibition on clearing in subclause 5.9 (3) applies.
However, the DCP purported to expand on that prescription to further purportedly exempt under cl 5.2.3:
The following tree removal/lopping activities do not require a DA from Council:
b) The clearing of native vegetation that is authorised by a development consent or property vegetation plan under the NV Act 2003 or that is otherwise permitted under the NV Act 2003 consistent with the Australian Standard Protection of trees on development sites (AS 4970- 2009); or …
Elachi argued that because the Native Vegetation Act 2003 (NV Act) permitted clearing to a limited extent on the Land, cl 5.2.3 operated to remove the requirement to obtain consent under the EPA Act.
Central to Elachi’s defence was a complex argument that because the DCP excluded this particular vegetation from the requirement to obtain consent, the requirement of the DCP to obtain consent did not apply because the vegetation was not prescribed.
In the Land and Environment Court, Biscoe J had held that cl 5.2.3 of the DCP, to the extent that it purported to provide an exemption to the requirement to obtain consent for tree and vegetation removal, was inconsistent with the operation of cl 5.9 (8) (a) (ii) of the LEP. This was because, while cl 5.9 (8) (a) (ii) provides that if the NV Act permits the clearing, the prohibition in cl 5.9 (3) does not apply because cl 5.9 (9A) removes that general exemption where land is mapped under “Cl 5.9” on the Clauses Map and Mr Elachi’s land was so mapped.
Biscoe J considered that the LEP addressed the circumstances where the NV Act would operate to exempt certain development from the requirement to obtain consent and to the extent that a provision of the DCP then attempted to deal with that same issue inconsistently, it could have no effect in accordance with s 74C (5) (b) of the EPA Act. Section 74C(5)(b) provides that a provision of a development control plan (whenever made) has no effect to the extent that it is inconsistent or incompatible with a provision of an environmental planning instrument.
In Elachi v Council of the City of Shoalhaven  NSWCA 15, the Court of Appeal agreed. Sackville AJA, observed at  that:
‘it would be an odd reading of cl 5.9 (3) to regard it as implicitly delegating to a development control plan the authority not merely to prescribe trees and vegetation for the purposes of cl 5.9, but the authority to create furtherexceptions to the general prohibition in cl 5.9 (3).’
Councils need to exercise caution in their wording of DCPs to ensure that the intention of specific provisions is capable of being given effect to. To the extent this is not the case, and the DCP purports to prescribe controls beyond the scope of the permission in the LEP, the DCP will have no effect.