Billgate Pty Limited v Woollahra Municpal Council

Billgate Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 61; Billgate Pty Ltd v Woollahra Municipal Council [2007] NSWLEC 399; Commonwealth Custodial Services Ltd v Valuer-General (2006) 148 LGERA 38 ; CASES CITED: Kenneth Trefor Langford v Copmanhurst Shire Council [1994] NSWLEC 38; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 147 LGERA 118 ; Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812; Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352 ; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79

APPLICANT: Mr T S Hale SC SOLICITORS: Colin Biggers & Paisley LEGAL REPRESENTATIVES: RESPONDENT: Mr P R Rigg SOLICITORS: Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: This is an appeal under s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner of the Court: Billgate Pty Ltd v Woollahra Municipal Council [2007] NSWLEC 399. Such an appeal is limited to questions of law. 2 The Commissioner dismissed an appeal against the deemed refusal by Woollahra Municipal Council of development application no. 352/2006 to demolish an existing dwelling-house and to erect a residential flat building comprising three attached dwellings at 20 Roslyndale Avenue, Woollahra (the site).

3 The site comprises a battleaxe shaped allotment having a site area inclusive of the access handle of 1,582 square metres (1,349 square metres exclusive of the access handle). The frontage with Roslyndale Avenue is 8.01 metres. The main part of the site has a width of 27 metres and a depth of about 54 metres. The access handle has a width of about 7.6 metres beyond the splayed frontage (8.01 metres) and a length of about 32.3 metres. The site falls from the street frontage to the rear boundary by some 19.5 metres. The properties adjoining the site are described in the Commissioner's judgment at paras 4 and 5.

4 The grounds upon which the Commissioner dismissed the appeal may be summarised as follows: (a) the development breached the development standard in cl 10B(1) of the Woollahra Local Environmental Plan 1995 ( LEP ): judgment paras 32 - 35; (b) the applicant's objection under State Environmental Planning Policy No 1 - Development Standards ( SEPP 1 ) was not well founded as the granting of consent to the development application would not be consistent with the aims of SEPP 1. This ground turned upon the proper construction of the objectives of the development standard in cl 10B(1) of the LEP: judgment paras 42 - 56; (c) the development was in breach of the objectives for the Desired Future Character in the Wallaroy Precinct envisaged in the Woollahra Residential Development Control Plan 2003 (DCP): judgment paras 57 - 59. 5 The applicant submits that on each of these grounds the Commissioner erred on a question of law. The appeal on the third ground arises only if the appeal on either of the first two grounds is upheld. GROUND 1 - CLause 10B(1) OF THE LEP 6 Clauses 10A and 10B of the LEP provides: 10A Objectives of site area and site frontage standards for residential flat buildings

The objectives of the minimum site area and frontage standards set by clause 10B are as follows: (a) to achieve compatibility between the scale, density, bulk and landscape character of buildings and allotment size, (b) to provide sufficient space between buildings, to maximise daylight and sunlight access between buildings, to ensure adequate space for deep soil landscaping and to preserve view corridors, (c) to prevent permanent barriers to sub-surface water flows, (d) to ensure that there is sufficient land for car parking on site, (e) to encourage consolidation of allotments in appropriate locations to enable the development of a diversity of dwelling types.

(1) A site must not be developed for the purpose of a residential flat building containing 3 dwellings or fewer unless the width of the site at the front alignment is 15 metres or more. (2) A site must not be developed for the purpose of a residential flat building containing 4 or more dwellings unless: (a) the site area is 930m2 or more, and (b) the width of the allotment at the front alignment is 21 metres or more. 7 The width of the access handle at its front alignment with Roslyndale Avenue is less than 15 metres. Thus, whether or not the development complied with or breached the development standard in cl 10B(1) depends upon whether, as a matter of construction, the words "the site at the front alignment" refers to the street frontage.

8 The applicant submits that those words do not refer to the street frontage but, rather, to the alignment of the building block. The applicant's argument was to the following effect: (a) cl 10B(2)(a) refers to " site area " which is defined in Schedule 1 of the LEP as follows: " site area means the area of land to which an application for consent under the Act relates, including any land on which the development to which the application relates is permitted by or under this plan, other than any long narrow corridor or accessway in the case of hatchet shaped or irregular allotments or land which was below the line of maximum tidal reach as at 15 December 1972 or at a date determined by the Council ". Thus, the access handle is not to be taken into account when applying cl 10B(2)(a). If the access handle is to be considered for one purpose under cl 10B but not for another purpose, some indication of this approach might be expected in the objectives in cl 10A. (b) the applicant's proposed construction is consistent with the objectives in cl 10A, which are not concerned with the access handle of a battle axe block. Those objectives assume that there will be no development on such an access handle (other than as a roadway). This confirms that, whether in relation to site area or the width of the site (frontage standards), the access handle is not to be taken into account. There is no purpose in the width of the access handle being regarded as " frontage ".

9 The applicant's submission is contrary to authority: Billgate Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 61 at [55]. The Commissioner, as she was bound to do, followed this decision. The applicant submits that Billgate should not be followed by me. That case involved an appeal relating to a different development on the site and adjoining property at 22 Roslyndale Avenue. Bignold J held that the "front alignment" in cl 10B(1) means the street frontage of the lot. The street frontage at the access way did not satisfy the minimum width requirement of cl 10B(1). Bignold J held at [55]: Coming to the requirements of cl 10B of the LEP I think that when regard is had to the stated objectives (vide cl 10A) and to the headings of both cll 10A and 10B, when cl 10B(2)(b) refers to "the width of the allotment at the front alignment", it is referring to the street frontage of the lot. I think that this is a preferable interpretation to that adopted by Ms Laidlaw in her Report (Exhibit 10) when she takes the requirement to be referring to the width of the allotment measured at the front alignment of the residential flat building. Accordingly, again the proposed development may not be carried out (vide cl 10B(2) of the LEP) unless the Court grants development consent by upholding the Applicant's objection pursuant to SEPP 1…

10 That construction is supported by a number of dictionary definitions of the word "frontage", which is used in cl 10A and in the headings to cll 10A and 10B. The word "frontage" is defined in the Shorter Oxford English Dictionary as "land which abuts on a river or piece of water, or on a road"; in the Australian Oxford Dictionary as "land abutting on a street or on water"; in the Macquarie Dictionary (3rd ed) as "land abutting on a river, street etc"; and in Butterworths Australian Legal Dictionary as "the boundary line between a site and the street upon which the site abuts".

11 The council submitted that Kenneth Trefor Langford v Copmanhurst Shire Council [1994] NSWLEC 38 is consistent with Bignold J's judgment. In my view, it is distinguishable. The present case is concerned with a battleaxe block and a LEP provision which does not elaborate on its references to frontage and front alignment. Langford was concerned with a right of way over adjoining land and with the meaning of the words "frontage to a .. road" in the following provision of a local environmental plan: "The council shall not consent to the erection of a dwelling-house on an allotment of land within Zone No 1(a) unless the allotment: (a) has an area of not less than 40 hectares; and (b) has a frontage to a Class A Road or Class B Road". Pearlman J held that a right of way over land adjoining the subject land was a road and therefore the subject land had a frontage to a road. Her Honour said: [Counsel], for the council, submitted that lot 30 has no frontage at all; it only has a right-of-way. He took the Court to the meaning of the word frontage in the Shorter Oxford Dictionary as land which abuts on a river or other stretch of water, or on a road . Lot 30, in [counsel's] contention, does not abut on a road, it abuts on a right- of-way. He argued that, were lot 30 to have a frontage, it would mean equating the right-of-way with a road, which it is not. A right-of-way describes merely a private arrangement between parties, which might, if ownership of the dominant and servient tenements came into the same hands, simply be extinguished.

I do not agree with this proposition. It does not accord, in my opinion, with the ordinary meaning of the word frontage . As the dictionary meaning demonstrates, frontage is a word referring to a piece or parcel of land which has as its characteristic the fact that it abuts on a river or a stretch of water or a road. It is not the right-of-way itself that is the frontage of lot 30; it is that part of the land comprised in lot 30 which has the characteristic of abutting on a road.

I think that the proposition advanced by [counsel] places too restrictive a meaning on the word road as that word applies in the definition of frontage . In my opinion, the ordinary meaning of the word frontage does not necessitate a distinction between the characteristic of abutting on a road or abutting on a right-of-way. The right-of-way has the physical characteristics of and is used as a road and it is those physical characteristics and that use which underpin the meaning of frontage . A part of lot 30 abuts on a piece of land which has the physical characteristics of and is used as a road, and it matters not, in adopting the ordinary meaning of the word frontage , that that piece of land is not a public road but is used as a road only by virtue of a private legal right to pass and repass over someone else's land. 12 Thus, a battleaxe block's access handle is not a road (Billgate) but a vehicular right of way over adjoining land is a road (Langford). The distinction is logical notwithstanding that both serve the same purpose of vehicular access. In the present case, even if the access handle were assumed to be a road, it would not assist the applicant because the site would not have the minimum frontage alignment thereto required by cl 10B(1).

13 The applicant relies on the LEP definition of "site area". The definition does not, in my view, bear significantly upon the construction of cl 10B(1), which does not refer to "site area". The definition is relevant to the calculation of the floor space ratio, to site area and to cl 10 of the LEP with respect to allotment sizes for dwelling-houses. It may be accepted that cl 10B should be construed in light of the objectives in cl 10A, however, I am unable to accept that that leads to the conclusion that the access handle is not to be taken into account under cl 10B(1) or that the applicant's construction should be accepted. This aspect is discussed further at [21] below. The objective in cl 10A(a) was the subject of disagreement between the parties' town planners at the hearing before the Commissioner: see para 37 of the judgment. The Commissioner decided that that objective was relevant to cl 10B(1), and that to determine whether compatibility is achieved requires an assessment of the characteristics of the site and its context as well as regard to planning controls: judgment para 43. As discussed under ground 2 below, I consider that the Commissioner was correct.

14 A judge at first instance will, as a matter of judicial comity, usually follow the decision of another judge at first instance in the same jurisdiction, unless convinced that the judgment was wrong: Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820, applied in Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352 at [128]; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 147 LGERA 118 at [22]; and Commonwealth Custodial Services Ltd v Valuer-General (2006) 148 LGERA 38 at [60]. I do not consider that the judgment in Billgate was wrong. I propose to follow it. 15 Accordingly, I reject the first ground of appeal.

GROUND 2 - SEPP 1 16 The applicant made a written objection under SEPP 1 that compliance with the development standard under cl 10B(1) was unreasonable or unnecessary in the circumstances of the case. The Commissioner held that the applicant's SEPP 1 objection was not well founded as a grant of consent to the development application would not be consistent with the aims of SEPP 1. 17 The applicant submits that the Commissioner erred in law in so holding. The applicant submits that this ground turns upon the proper construction of the objectives of the development standard in cl 10B(1). This second ground of appeal covers much the same territory as the first ground but from a slightly different perspective.

18 The Commissioner referred to the five questions which must be answered when determining a SEPP 1 objection referred to in Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 89 by Lloyd J: 26. …it seems to me that SEPP No 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the policy, and in particular, does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case [unreported, Land and Environment Court, NSW, Cripps J, 2 June 1986]). Fifth, is the objection well-founded?

27. Memel Holdings Pty Ltd v Pittwater Council , to which I have referred, was an appeal against a decision of the senior commissioner. Talbot J said (at 221): The failure to identify the objectives of the development standard and then to consider whether, in the light of those objectives, it was unreasonable or unnecessary to apply the development standard in the subject case means that the Senior Commissioner fell into legal error on a matter which was fundamental to the ultimate decision.

28. It seems to me that the senior commissioner has in the present case fallen into the same error which he committed in Memel Holdings …

19 The second of those questions is relevant to this ground of appeal, namely: "what is the underlying object or purpose of the standard?" The Commissioner held that the objective in cl 10A(a) was relevant to the frontage standard in cl 10B(1). The applicant submits that the objective in cl 10A(a) is not in any way directed to frontage standards in cl 10B because (a) cll 10A and 10B do not apply to the access handle of a battleaxe block unless part of a residential flat building, or, perhaps, if parking is to be included in the access handle; (b) the words "allotment size" in cl 10A(a), "on site" in cl 10A(d) and "allotments" in cl 10A(e) indicate that cl 10A is only concerned with the site insofar as it comes within the definition of "site area" which excludes an access handle; (c) similarly, the word "site" in cl 10B was intended to refer to the site for the purposes of the determination of site area as defined; (d) cl 10A(a) is only concerned with internal site considerations.

20 The submission that cl 10A(a) does not relate to frontage standards in cl 10B was put to the Commissioner who did not accept it. Having held that cl 10A(a) was relevant, the Commissioner held that the concentration of the development at the rear of the site did not achieve compatibility with adjoining properties. In that regard the Commissioner held: 43. I do not accept Mr Hale's submission that cl 10A(a) does not relate to site frontage. Clause 10A states that it provides the objectives of the minimum site area and frontage standard set by clause 10B . Clause 10B(1) specifies a minimum width of site at the front alignment. It does not specify a minimum site area. Clause 10A(a) is a relevant objective for the standard in clause 10B(1). In considering the purpose of a standard which specifies a minimum frontage an appropriate objective would be to achieve compatibility between the scale, density, bulk and landscape character of buildings and allotment size. To determine whether compatibility is achieved requires an assessment of the characteristics of the site and its context as well as regard to the planning controls.

Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 set out principles to establish the compatibility of development with its surrounding context. In summary to achieve compatibility a proposal: should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment.

To achieve compatibility of the proposal to its allotment the essential elements of the character of other buildings and their allotments needs to be considered, while recognising the different use of the land. The key characteristic of the area is that building[s] are generally built fronting the street which establishes a building to building relationship in the front part of the sites with a corridor of open space to the rear. Due to the steep slope of the land this corridor of open space between dwellings which front Roslyndale Avenue and Wallaroy Road provides a highly visible landscape which serves to screen and soften the built form.

Bignold J in Billgate in assessing the earlier application for the combined site stated: 81. My evaluation of this extensive evidence leaves me in no doubt that the proposed development is an overdevelopment of the development site in the sense that it concentrates all of the residential buildings on the rhomboid shaped area of the development site, which is significantly sloping land, forming an essential feature (physical and visual) of the Edgecliff ridgeline, with the intrinsic capacity to be visually dominating of the adjoining residences in Wallaroy Road situate well below (but nonetheless well within the viewing catchment, of the development site and the proposed development). 82 This concentration of the proposed development, at the scale and intensity proposed (which far exceeds the existing development on the development site) within this topographically significant and visually prominent part of the development site which is far removed from the Roslyndale Avenue frontage and streetscape, is entirely uncharacteristic of the development in this discrete section of the Edgecliffe Road Precinct formed by Roslyndale Avenue and the residential development on its eastern side……

While Bignold J was dealing with a different development on a different site his observations about the landform and the characteristics of development are relevant to this application.

The proposal concentrates development at the rear of the site. This is a direct result of it being a battle axe site with insufficient width at the front to accommodate any part of the development other than the driveway. Consequently the relationship of building to building and building to open space which is characteristic of the area is not replicated by this development. Clearly as the development is for a residential flat building it is not expected that the same relationship would be achieved, but a degree of compatibility is required. By concentrating the development at the rear of the site there are clearly adverse impacts on adjoining properties which may not result on a site with a wider street frontage as required by cl 10B(1). 21 In my opinion, the Commissioner did not fall into error in holding that cl 10A(a) was relevant to the frontage standards set by cl 10B. Clause 10A expressly states that, inter alia, sub clause 10A(a) is an objective of frontage standards set by cl 10B. Clause 10B(1) does not refer to site area and, as discussed earlier at [13], should not be read down by the LEP's definition of site area. I am also unable to accept that cl 10A(a) is restricted to internal compatibility within the subject site and that the wider context is irrelevant. No such express restriction is to be found in that provision and it is difficult to see why it should be implied. Planning for the development of land is concerned with municipality wide considerations and a provision such as this does not naturally lend itself to a construction which restricts it to considerations which are internal to a particular site. 22 Accordingly, I reject the second ground of appeal. As the first and second grounds of appeal have both been rejected, the third ground of appeal does not arise for consideration.

CONCLUSION 23 The Court orders as follows:

1. The appeal is dismissed.
2. The applicant is to pay the respondent's costs of the appeal.
3. The exhibits may be returned.

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.