50 Burchmore Road Pty Ltd v Warringah Council

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10877 of 2003 Moore C 3 December 2003 50 Burchmore Road Pty Ltd Applicant

1 . The matter that is presently before the Court involves three possible steps in the decision making process for the Court pursuant to the Warringah Local Environmental Plan 2000 ("the LEP") and the Environmental Planning and Assessment Act 1979 . The first matter is an issue concerning the construction of the LEP as to the housing density and whether there is an exemption which permits the applicant, as of right, to have lodged the application that is currently before the Court. If that plan is interpreted so that the applicant is not able to lodge the application as of right, there is an internal provision within the Local Environmental Plan that is analogous, in some respects, to the ability under State Environmental Planning Policy No. 1 to set aside the relevant development control. If the applicant were to succeed on that point (if it were necessary for it to do so), there would still be the necessity for a hearing of the matter on the merits. I am presently merely determining the first of those issues.

2 . The application, which is Development Application 0706 of 2003, proposes the erection of a further twelve townhouses at the rear of a number of properties in Burchmore Road, Manly Vale. The application is adjunct to and subsumes part of an approval given by Pain J in this Court on 8 August 2002: see Mackenzie v Warringah Council [2002] NSWLEC 131. Amongst the matters that arise out of her Honour's decision in that matter is the creation of a new allotment known as Lot 5 which has an area of approximately 2900 square metres. This allotment is proposed to be added to four allotments to the south and south-west of this allotment.

3 . A preliminary issue has been raised by the respondent council concerning the interpretation of the LEP on this matter. This issue was not agitated before Pain J in the earlier proceedings. There is no dispute in the present proceedings that, if it is appropriate to treat the LEP as the applicant contends, the land area of what would be regarded as the site would be greater than 3000 square metres. The LEP is the relevant planning instrument. The plan's life was extended at the end of 2002 but the parties have agreed that nothing in these proceedings turns on this point.

4 . The LEP operates by a series of controls in various areas throughout the shire and includes a range of matters which are standards for each locality area which is described in the appendices to the plan. As I indicated earlier, State Environmental Planning Policy No. 1 does not apply but a broad analogous provision arises through the vehicle of clause 20 of the LEP.

5 . The land that is the subject to the present application is in locality G7 known as the Innes Road locality and a statement concerning this locality commences in appendix G of the LEP at p 531.

6 . The first relevant aspect of the LEP is a statement that is contained at the commencement of these provisions relating for the desired future character of the Innes Road area and it reads as follows: T he Innes Road locality will remain characterised by a mix of detached housing and apartment development in landscape settings interspersed by a range of complimentary and compatible uses. The development of further apartment buildings within the locality will be confined to the medium density area shown on the map. Future development will maintain the visual pattern and predominant scale of existing detached housing in the locality except in the areas marked as medium density areas on the map. In these medium density areas the scale of development is to relate favourably to existing apartment buildings in the area, the streets will be characterised by landscaped front gardens and consistent front building setbacks. The spread of indigenous tree canopy will be protected and enhanced throughout the locality. Unless exemptions are made to the housing density standard in this locality statement any subdivision of land is to be consistent with the predominant pattern size and configuration of existing allotments in the locality."

7 . The various categories of land in the locality are helpfully set out at attachment 5 to the statement of evidence of Mr Peter Strudwick, a town planing consultant giving evidence on behalf of the applicant, whose statement of evidence is at exhibit G in these proceedings. Subdivision is dealt with specifically in the desired future character statement in the third of its paragraphs. The land use table that accompanies this element, that is the G7 locality statement, contains three categories of land use together with a limited range of prohibited development. Clause 14(2) of the LEP deems subdivision to be within category 2. Clause 12(3)(b) of the LEP reads: Category 2 or 3 - in addition, before granting consent for development, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant locality statement.

8 . That is a slightly more strict test than is required by 12(3)(a) for category 1 development the only form of which permitted in this locality is housing.

9 . A housing density requirement is set out in the LEP at page 533. It is the provision of the LEP that is at the centre of the present matter for determination and it reads as follows: "Maximum housing density is one dwelling per 600 square metres of site area [then an exception for an access corridor which is not presently relevant].

To measure housing density, the site area is divided by the number of dwellings proposed on the site including any existing dwellings which are to be retained. The site is the allotment which existed on the day this plan came into effect, granny flats are not considered to be a dwelling and are limited to one per allotment."

10 . The provision then contains four exceptions to this control - only one of which is relevant in these proceedings. It reads: (b) on land equal to or greater than 3000 square metres in area where the land area per dwelling may be reduced provided the buildings are sited and designed and landscaping is used to ensure the development relates favourably to the pattern scale and landscape character of the street and surrounding development

11 . Mr McEwen SC, for the applicant, took me to the history of the making of this provision and asked me to draw a conclusion favourable to his client from its evolution. I do not choose to do so for reasons that will be obvious from the conclusion, that I have otherwise reached as to the approach to construction to be taken. However, even had I not reached this conclusion, I would not have considered it appropriate to have regard to these documents unless there was some manifest inconsistency on the face of the present provisions for which the earlier documents might provide some logical illumination.

12 . Mr Robertson SC, for the council, in his reply submissions urged me to read the exception in context. If I were to do so I would read it as follows: A maximum housing density of one dwelling per 600 square metres of site area does not apply on land equal to or greater than 3000 square in area where the land area per dwelling may be reduced provided the buildings are sited and designed and landscaping is used to ensure the development relates favourably to the pattern scale and landscaped area of the street and surrounding development.

13 . I concur that this is the appropriate approach to reading the exception to the control. The question therefore arises is: How does that form of words read to give a purposive meaning?

14 . The LEP provides, as I have previously noted, three elements to measuring the housing density. Two of them are not presently relevant but the second of the dot points is the one upon which Mr Robertson relies and says that the site is the allotment which existed on the day this plan came into effect. I understand that it is common ground that the land which is the subject of the present application was not in existence in the relevant sense at the time of making the plan.

15 . Mr McEwen took me to Pearce and Geddes Statutory Interpretation in Australia at the fourth edition. It is a writing with which I have some familiarity. I do not consider that the passages to which Mr McEwan has taken me provide any assistance in this case. I do, however, consider that material which is set out at pages 23 and 24 of the volume has considerable relevance in these proceedings. The learned authors refer to the remarks of Wensleydale LJ in Gray v Pearson (1857) 6 HLC 61 at 106; 10 ER 1216 at 1234 in which His Lordship said (and I quote from Pearce and Geddes) : I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the courts of law at Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical or ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.

16 . The learned authors describe that as the " golden rule " and thereafter set out a number of instances where that approach has been adopted by the High Court of Australia. As best I am able to establish, the High Court has noted this statement with approval at least as recently as statements by Gaudron J in the Corporate Affairs Commission v Yule (1991) 172 CLR 319 at 340 and again at Leaross Pty Limited v Tarara Pty Limited (1991) 174 CLR 407 at 427. The issue therefore becomes, how do I read and make sense of a provision which would say: A maximum housing density of one dwelling per 600 square metres of site area does not apply on land equal to or greater than 3000 square metres in area et cetera.

17 . Applying the principles from Gray v Pearson which Wensleydale LJ enunciated, I read that provision as requiring that there is no need to calculate a maximum housing density on land equal to or greater than 3000 square metres in area. If there is no need to calculate a maximum housing density on such a site, the three measurement indicators adverted to by Mr Robertson do not apply.

18 . Therefore, I conclude that the present application is permissible on the land covered by the application notwithstanding that it is in separate ownership as all owners have given their consent and the application is for an area of land greater than 3000 square metres.

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