Australand Holdings Limited v Parramatta City Council [2003] NSWLEC 229 | Case summary

Land and Environment Court (NSW)|1996-06-20|Before: Cowdroy J, Talbot J, Bignold J, Mr P, Mr J

The applicant submits that the definition of multi unit housing, as interpreted by the council, would not achieve the objects of either the LEP or the EP&A Act. 16 With respect to the phrase "natural ground level" the applicant also refers to the observations of Bignold J in Rockdale Municipal Council v Rizzi. However the applicant submits that the word "existing" in the phrase then being considered distinguishes it from the meaning of "natural ground level". The applicant claims that the fact the word "existing" is not contained in the Definition demonstrates that "natural ground level" means ground level after filling or excavation and not the site as it existed at the date of development consent. That is, as long as there is access to private open space at natural ground level, the requirements of the definition are satisfied. Findings

17 Each party has submitted that the other party's interpretation of "natural ground level" would lead to absurd results. It is not disputed between the parties that "natural ground level" means the ground level of land. What is contested is the time at which such level is to be determined. The council claims that "natural ground level" is the level of land determined prior to site works being undertaken. The council acknowledges that "natural ground level" does not equate to the level of the land as it existed from time immemorial, because that level may have altered, as a result of prior development. Such submission therefore gives recognition to the observations of Bignold J in Rockdale Municipal Council v Rizzi. Accordingly the council concedes that if after development a ground level is altered in the development that level may become "natural ground level".

18 When considering the phrase "existing natural ground level", Bignold J in Rockdale Municipal Council v Rizzi emphasised the word "existing". The word "existing" formed the basis for His Honour's conclusion that the ground level is to be determined in its natural state at the date of development consent, even though His Honour recognised that this might not be the original landform. In contrast the Definition does not contain the word "existing". The absence of the word "existing" in the Definition suggests that there is no requirement that the "natural ground level" be considered at the date of the application, as submitted by the council. Accordingly the Court rejects the council's submissions that the phrase "natural ground level" is to be considered when a development application is made. There is no such temporal requirement in the Definition. 19 The question of law now arising is to be determined by considering the context in which the words "natural ground level" arises, namely in the Definition. To qualify as multi unit housing the completed development must provide "private open space at natural ground level" in order to distinguish multi unit housing from other types of development. Applying the purposive approach referred to by Talbot J in Lee and as directed by s 25(3) of the EP&A Act the Court must ascertain the purpose of that requirement contained in the Definition. 20 The purpose of the open space requirement, as is evident from the Definition, is to provide private open space at "natural ground level". That is, such space is not to be provided at a level above ground such as by an elevated platform or deck, or below ground. The open space at ground level is to be provided at a level commonly understood to be "ground level". The words "natural" and "ground" describe the requisite level and do not impose an additional constraint that the private open space must be of "natural ground". Rather it is this level as created by the development at which open space is to be provided to satisfy the Definition. So considered "natural ground level" does not mean the natural ground level of the site before development, but the finished ground level of each of the dwellings comprising the multi unit housing development. Such interpretation of "natural ground level" is consistent with the objectives of the LEP, particularly the objectives which seek to simplify planning controls in the City of Parramatta and to encourage development of a range of housing styles, including multi unit housing.

21 The council relies upon the DCP as extrinsic material to support its submissions. In Chalmers & Others v Sutherland Shire Council (1997) 95 LGERA 415 Lloyd J held that the provisions of a development control plan could not be used to govern the meaning of a local environmental plan. Such finding is respectfully adopted. The Court therefore cannot use the definitions contained in the DCP to interpret the LEP, subject to one matter. When the LEP was formulated, it is apparent that the DCP was intended to complement its provisions. Clause 3(2)(k) of the LEP refers to the creation of an integrated planning framework and for development control plans to contain more detailed controls. Since the LEP and the DCP were adopted in the same year it is useful to have regard to the provisions of the DCP solely for the purpose of considering the requirements for multi unit housing. 22 The Court observes that the provisions of the DCP reinforce its findings made above. For example Part 5.4 of the DCP states, inter alia, the performance criteria and design solutions and controls for multi unit housing. The performance criteria refers to design solutions for providing private open space and includes the following control:- A minimum of 40sqm of private open space, off main living area, per dwelling is required at ground level with 1 minimum portion of 4x6 metres. Diagrams comprising figures 39 and 40 in Part 5.4 of the DCP depict an area of open space in the nature of a courtyard. If the council's interpretation of the phrase "natural ground level" were applied, the achievement of the objective and performance criteria might be impossible. It is apparent that the design controls contained in Part 5.4 of the DCP relating to the provision of private open space show that such space is to be provided at ground level rather than "natural" ground level. Answer to question of law 23 For the above reasons the Court concludes that the question of law should be answered as follows:- "Natural ground level" in the definition of "multi unit housing" in the dictionary of the LEP operates to require the provision of private open space at the level of natural ground of the completed development.

That costs be reserved;
The exhibits be returned.

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CITATION : Australand Holdings Limited v Parramatta City Council [2003] NSWLEC 229 APPLICANT Australand Holdings Limited PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10379 of 2003 CORAM: Cowdroy J KEY ISSUES: Question of Law :- meaning of "natural ground level" - whether "natural ground level" is ground level prior to development - development application for multi-unit housing - interpretation to meet aims and objectives of local environmental plan Environmental Planning and Assessment Act 1979, s 5, s 25(3) LEGISLATION CITED: Interpretation Act 1987, s 33, s 34 Parramatta Development Control Plan 2001 Parramatta Local Environmental Plan 2001 Bendigo Bank Ltd v Williams and Others (2000) 98 FCR 377; Chalmers & Others v Sutherland Shire Council (1997) 95 LGERA 415; Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1980-1981) 147 CLR 297; Elazac Pty Ltd v Commissioner of Patents and Another (1994) 125 ALR 663; CASES CITED: G & A Lee and J & A Cormack v Pittwater Council (Talbot J, Land and Environment Court, 20 June 1996, unreported); McClenahan & Anor v North Sydney Council [2003] NSWLEC 187; MLC Properties and Another v Camden Council and Others (1997) 96 LGERA 52; Rizzi and Another v Rockdale Municipal Council (1994) 85 LGERA 113; Rockdale Municipal Council v M & L Rizzi (Bignold J, Land and Environment Court, 10 May 1991, unreported) DATES OF HEARING: 7/10/2003 DATE OF JUDGMENT: 10/10/2003

12 The applicant submits that the provision of "private open space at natural ground level" is a requirement of multi unit housing which characterises it from other types of residential development. For example residential flat buildings may provide open space by means of a balcony, deck or other artificial structure. Additionally, the applicant submits that there is no provision in the LEP which suggests that contouring of the site by cut and fill is prohibited in multi unit housing development, nor that reasonable excavation or filling cannot be carried out in the development of multi unit housing. 13 The applicant relies upon the observations of Lloyd J in McClenahan & Anor v North Sydney Council [2003] NSWLEC 187 as providing the correct approach when interpreting the LEP. Lloyd J adopted the observations of Gibbs CJ in Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1980-1981) 147 CLR 297. Gibbs CJ said at p 305:- However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.

(2003) 128 LGERA 411

Australand Holdings Limited v Parramatta City Council

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