Michael Brown PS v WSC [2020] NSWCA 137

Use and abuse of dictionaries is a regular topic for judicial comment12.  This case involved planning consent given on the basis that the development (flats) ‘is compatible with the flood hazard of the land’13.  Was ‘is’ used here merely to indicate present compliance, or did it cover things later to be done?

Basten JA (at [12-15]) said courts can always look at dictionaries, but they are not bound by them14.  Dictionaries say nothing about context, which is crucial in determining what the words mean.  Both dictionaries cited emphasised that the natural use of ‘is’ is to indicate present tense, a usage confirmed by the planning instrument read as a whole.

This principle is from Episode 64 of interpretation NOW!


12 Pearce 9th ed (at [3.33-3.35]), Hunter’s Hill [2017] NSWCA 188 (at [76-83]).

13 clause 7.9(3)(a) of the Wingecarribee Local Environmental Plan 2010.

14 Herzfeld & Prince (at [20.40]), Bendixon (1943) 68 CLR 401 (at 415).