Castle Constructions Pty Ltd v North Sydney Council

Castle Constructions Pty Ltd v North Sydney Council - [2007] NSWLEC 459 - NSWLEC 2007 case summary — Zoe

[5]

7-Eleven Stores v Sydney City Council (2004) 138 LGERA 125; Al-Kateb v Godwin (2004) 219 CLR 562; Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229; Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37; Bropho v Western Australia (1990) 171 CLR 1; Butler v Attorney-General (Vic) (1961) 106 CLR 268; Cabell v Markham 148 F 2d 737 (1945); Castle Constructions v North Sydney Council [2006] NSWLEC 5; Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324; Edwards v Attorney General (2004) 60 NSWLR 667; Franklins Ltd v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134; GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116; CASES CITED: Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252; King v Bathurst Regional Council (2006) 150 LGERA 362; MCC Energy Pty Ltd v Wyong Shire Council and Others (2006) 149 LGERA 59; Mills v Meeking (1990) 169 CLR 214; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Municipal Officers' Association of Australia v Lancaster (1981) 37 ALR 559; North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Save Our Street Inc v Settree and Another (2006) 149 LGERA 30; Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532; Swan Hill Corporation v Bradbury (1937) 56 CLR 746; Town Planning Board v Society for the Protection of the Harbour Ltd [2004] 1 HKLRD 396; Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; Williams v Melbourne Corporation (1933) 49 CLR 142 ; Winn v Director-General of National Parks and Wildlife and Others (2001) 130 LGERA 508

[23]

(a) to maintain the status of the North Sydney Centre as a major commercial centre within Australia, (b) to require arrangements for railway infrastructure to be in place before additional non-residential gross floor area is permissible in relation to any proposed development in the North Sydney Centre, (c) to ensure that railway infrastructure, and in particular North Sydney Station, will enable and encourage a greater percentage of people to access the North Sydney Centre by public transport than by private transport and will: (i) be convenient and accessible, and (ii) enable a reduction in dependence on private car travel to the North Sydney Centre, and (iii) be adequate to achieve no increase in car parking, and (iv) have the capacity to service the demands generated by development in the North Sydney Centre, (d) to discourage use of motor vehicles in the North Sydney Centre, (e) to encourage access to and within the North Sydney Centre for pedestrians and cyclists, (f) to allow for 250,000 square metres (maximum) non-residential gross floor area in addition to the estimated existing (as at the commencement of this Division) 700,000 square metres non-residential gross floor area, (g) to prohibit further residential development in the core of the North Sydney Centre, (h) to encourage the provision of high-grade commercial space with a floor plate, where appropriate, of at least 1000 square metres, (i) to achieve a variety of commercial space, (j) to encourage the refurbishment, recycling and rebuilding of older buildings, (k) to encourage a diverse range of employment, living, recreation and social opportunities, (l) to promote high quality urban environments and residential amenity, (m) to provide significant public benefits such as open space, through-site linkages, childcare and the like, (n) to improve accessibility within and to the North Sydney Centre, (o) to protect the amenity of residential zones and existing open space within and nearby the North Sydney Centre, (p) to prevent any net increase in overshadowing of any land zoned residential or public open space or identified as a special area, (q) to maintain areas of open space on private land and promote the preservation of existing setbacks and landscaped areas, and protect the amenity of these areas. 28D Building heights and massing

[37]

The specific aims of this plan are: (a) in relation to the character of North Sydney's neighbourhoods, to: (i) promote the character of the neighbourhood and development which is compatible with neighbouring development in terms of bulk, scale and appearance, and (ii) maintain a diversity of activities while protecting residential accommodation and local amenity, and (iii) ensure that development on foreshore lands or land visible from the harbour or any public place does not adversely affect the appearance of that foreshore land, or the views of that land from the harbour or public place, and (b) in relation to residential development, to: (i) protect and enhance the residential use and amenity of existing residential neighbourhoods and new residential development, and (ii) maintain and provide for an increase in dwelling stock, where appropriate, and (iii) prevent the expansion of non-residential uses in residential neighbourhoods, and (c) in relation to non-residential development, to: (i) maintain a diversity of employment, services, cultural and recreational activities, and (ii) ensure that non-residential development does not adversely affect the amenity of residential properties and public places, including adverse affectation by reason of the use, design, bulk, scale or appearance of the development, or the traffic generation and parking associated with the development, and (iii) maintain waterfront activities and ensure that these activities do not adversely affect local amenity and environmental quality, and (iv) minimise adverse effects of all permitted non-residential development and non-conforming uses or development, and (d) in relation to environmental quality, to: (i) maintain and protect natural landscape, topographic features and natural ground surfaces, and (ii) improve soil quality and regulate the remediation and development of contaminated land, and (iii) minimise storm water run-off and its adverse effects and improve the quality of local waterways, and (iv) minimise atmospheric pollution and its adverse effects, and (v) minimise noise emissions and their adverse effects, and (vi) preserve and protect flora and fauna, and (vii) promote the efficient use of energy and resources, and (viii) minimise waste generation, including waste to landfill, and (e) in relation to environmental heritage, to: (i) identify and encourage the conservation of the heritage of North Sydney, including heritage items, heritage conservation areas, Aboriginal sites, bushland, parks, foreshores and trees, and (ii) ensure that development does not adversely affect the significance of the heritage of North Sydney (including heritage items, heritage conservation areas, Aboriginal sites, bushland, parks, foreshores and trees), and (f) in relation to community well-being, to: (i) provide for the growth of a permanent resident population and encourage the provision of a full range of housing, including affordable housing, and (ii) encourage the expression of community identity and cultural diversity, and (iii) ensure the social and economic effects of development are appropriate, and (iv) ensure good management of, and investment in, the community's assets, and (g) in relation to cultural resources, to: (i) ensure that development does not adversely affect the quality, amenity and value of cultural resources, and (ii) ensure that development does not impede access to cultural resources, and (iii) ensure that development does not adversely affect the presentation to streets and other public places of cultural resources. (h) in relation to the foreshore areas of North Sydney, to improve access by acquisition or dedication or by gaining rights of public access over foreshore land where it will not diminish the natural values of the foreshore. THE DCP 21 The DCP was adopted by council on 18 February 2002. It came into force on 21 February 2002. 22 On 20 March 2003, council amended the DCP to include "character statements" for each of North Sydney's neighbourhoods (DCP Character Statements). "Character statement" is defined in the LEP as follows: character statement means a statement that:

[73]

"to achieve the purpose" of the LEP 46 As to the first respect, the applicant contends that the 2006 Amending DCP does not "achieve the purpose" of the LEP for the following reasons: (a) the height controls in the 2006 Amending DCP are contrary to the building height controls in cl 28D(2) and (4) of the LEP. (b) the reduction in building heights in the 2006 Amending DCP will not achieve the objective of Division 4 of Part 3 of the LEP stated in cl 28B(f), for an additional 250,000 square metres of non-residential gross floor area. (c) the height controls in the 2006 Amending DCP are contrary to the objective of cl 28D of the LEP stated in cl 28D(1)(a), to achieve a transition of building heights from the tallest buildings stepping down towards the boundaries. (d) the reduction in building heights in the 2006 Amending DCP is contrary to the specific objectives of Division 4 of Part 3 of the LEP stated in cl 28B(a), (b) (c), (h), (j), (k), (l), (m), (n) and (p) of the LEP. (e) the height controls in the 2006 Amending DCP are based at least in part on the operation of cl 30 of the LEP, the building height plane provision, which the Court of Appeal has held is inapplicable. (f) the effect of the massing provisions, height controls and section 1.1.oa of the 2006 Amending DCP (" new amalgamation controls") will be to require amalgamation of the applicant's land with adjoining land and prevent erection of any building on the applicant's land which does not include the adjoining land. This defeats the purpose of the building height provisions in cl 28D(1) of the LEP by rendering cl 28D of no utility. 47 The applicant pleaded, but did not press in submissions, that mere inconsistency between a particular provision of the 2006 Amending DCP and a particular provision of the LEP constitutes a breach of s 74C(1)(a). Such a proposition would not be sustainable. It is apparent from s 74C(5)(b) that where a provision of a development control plan is inconsistent with a provision of an applicable local environmental plan, the legislative response is not that the planning authority has acted without power or that the plan is invalid, but that the provision has no effect to the extent of the inconsistency. Therefore, inconsistency between a provision of a development control plan and a provision of an applicable local environmental plan cannot be the test of whether the prescribed purpose has been achieved under s 74C(1)(a). 48 Questions of construction arise in relation to whether the test posited by s 74C(1)(a) is objective or subjective and the meaning of the words "purpose" and "to achieve".

[76]

51 Construction of the details limb is governed by the Court of Appeal's decision in North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23. That case was concerned with the predecessor to s 74C, the former s 72, which relevantly provided that: "(1) Where a council considers it necessary or desirable to provide more detailed provisions than are contained in a local environmental plan…in respect of a part or parts of the land to which that plan…applies, it may prepare or cause to be prepared a development control plan…(3) Such a development control plan shall generally conform to the provisions of the local environmental plan…which applies to the land to which the development control plan applies". The former s 72(1) was substantially to the same effect as the current s 74C(1)(a) except that it did not expressly include the purpose limb. The Court of Appeal held that a development control plan provision which restricted the height of residential flat buildings in a particular zone to three storeys, generally conformed to a local environmental plan that permitted (with consent) residential flat buildings within that zone. Cole JA (with whom Abadee AJA and Meagher JA agreed) held at 31: A provision in a Development Control Plan which says that a consent may be granted only if certain conditions are satisfied, or a consent may not be granted if certain conditions are not satisfied, simply specifies more detailed criteria or provisions which must be met before the development which may be permitted with consent under the North Sydney Local Environmental Plan can be granted…I see no reason why a development control plan, in providing more detailed planning considerations may not, by imposing criteria by way of restriction or specification of necessary requirements to be met before the development consent contemplated by a North Sydney Local Environmental Plan is granted, should not be regarded as conforming with the wider North Sydney Local Environmental Plan. In my opinion that aspect of the decision in Guideline Drafting [ & Design v Marrickville Municipal Council (1988) 64 LGRA 275] should be regarded as wrongly decided…A detailed plan which contained a provision contrary to the wider plan would not be in conformity with it, but a provision which is restrictive or prohibitive unless certain conditions are met is not such a contrary provision.

[79]

54 The second form of limitation of power in s 74C(1)(a) involves purpose. If there is an exercise of power for a purpose outside s 74C(1)(a), it is ultra vires. In Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 at 82 Dixon J said: But with respect to the acts or determinations of subordinate authorities other questions arise. To begin with their powers are limited and the form of the limitation upon a power of subordinate legislation may itself involve purpose. If there is an exercise of such powers for a different purpose, it is outside the Act which confers them ( Narma v. Bombay Municipal Commissioner (1918) 45 Ind. App.,at p.129). There are forms of legislative authority, such as in Clanricarde's Case (1914) 79 J.P.481; 31 T.L.R 120 and in Municipal Council of Sydney v. Campbell (1925) A.C. 338 where a given purpose' is made an express condition of exercising the power. If that purpose' is not pursued, the power is not exercisable, and therefore the facts are examinable in order to ascertain what purpose was in view , per IsaacsJ. in Jones v. Metropolitan Meat Industry Board (1925) 37 CLR at p. 262: Cp. Werribee Council v. Kerr (1928) 42 CLR 1 (which, however, like Clanricarde's Case (1914) 31 T.L.R 120; 79 J.P 481 and Campbell's Case (1925) A.C. 338 did not involve a by-law). 55 The purpose limb in the current s 74C(1)(a) is said by the applicant to strengthen the requisite nexus between the DCP and the LEP. I am inclined to think that it makes explicit what was implicit in the former s 72(1), consistently with a purposive construction. In other words, the old s 72(1) did not authorise a council to provide more detailed provisions, which it considered necessary or desirable, in a development control plan if they could not reasonably be viewed as achieving the purpose of an applicable local environmental plan. Be that as it may, the purpose limb has to be addressed in the present case. 56 What is the purpose of the LEP, of which s 74C(1)(a) speaks? The singular "purpose" may be construed to include the plural "purposes": s 8(b) Interpretation Act 1987 (NSW). The applicant submitted that purpose or purposes in s 74C(1)(a) means any of the stated purposes, objectives or controls of the LEP including the non-residential gross floor area objective of Division 4 of Part 3 expressed in cl 28B(f), the transition of building heights objective of cl 28D(1)(a), and the maximum height control in cl 28D(2)(a). The last is not expressed as an objective but as an exception to a prohibition. The applicant's submission equates a stated "objective" of a particular Division or clause of the LEP, and even a stated control in an LEP, with the purpose of the LEP.

[81]

58 In approaching the interpretation of s 74C(1)(a), there should be taken into account that it is couched in terms of some generality. It is concerned with a precondition to the power of a planning authority to prepare a development control plan. It directs attention to the purpose of an applicable environmental planning instrument, not to the purpose of a particular provision or provisions of an applicable environmental planning instrument. It stands in contrast to s 74C(5)(b) which is concerned with inconsistency between particular provisions. 59 Courts are familiar with the task of identifying the purpose of legislation when interpreting legislation. The importance of a purposive construction was vividly described by Justice Learned Hand in Cabell v Markham 148 F 2d 737 (1945) at 739: …the decisions are legion in which [the courts] have refused to be bound by the letter, when it frustrates the patent purpose of the whole statute…As Holmes J said in a much-quoted passage from Johnson v United States 163 F. 30, 32, 18 L.R.A.N.S., 1194 : it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before… Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. 60 The common law rule that legislation should be interpreted so as to achieve its underlying purpose is now reformulated in statutory form in all Australian jurisdictions: Acts Interpretation Act 1901 (Cth) s 15AA; Interpretation Act 1987 (NSW) s 33; Interpretation of Legislation Act 1984 (VIC) s 35(a); Acts Interpretation Act 1954 (QLD) s 14A; Acts Interpretation Act 1915 (SA) s 22; Interpretation Act 1984 (WA) s 18; Acts Interpretation Act 1931 (TAS) s 8A; Legislation Act 2001 (ACT) s 139; Interpretation Act (NT) s 62A. Section 33 of the Interpretation Act 1987 (NSW) provides:

[113]

95 In Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 Tobias JA (Bell J agreeing) held that the test of inconsistency for the purposes of cl 28A of the LEP was that formulated by Kirby P in Coffs Harbour and that the natural meaning of inconsistency included where a paramount provision was intended to be an exclusive code or exhaustive statement. Tobias JA held that cl 28D was an exclusive code or exhaustive statement in respect of building heights and massing within the North Sydney Centre: at [55(e) and (h)], [61]. Consequently cl 30 of the LEP was inconsistent with cl 28D. Therefore, cl 30 had no operation in respect of the mixed use zone in the North Sydney Centre because cl 28A gave paramountcy to the provisions of Division 4 of Part 3, in which cl 28D is found. The following passages from the judgment of Tobias JA are of particular relevance: [48] …cl 30 relates exclusively to protecting amenity and applied an inflexible and mechanical standard which leaves no room, unlike cl 28D(5), to a balancing of the factors required by consent authority to be taken into consideration under that provision. In other words, the latter imposes qualitative standards whereas the BHP [building height plane] is a broad numerical or quantitative control, which is not only different but also incompatible, and lacking harmony with the nature of the control provided by cl 28D(5). … 55 …consideration of the detailed and quite complex provisions of cl 28D compared to the far more simple quantitative controls of cls 29 and 30, in my opinion, demonstrates that cl 28D was intended as an exclusive code in respect of building heights and massing of buildings within the Centre's zones including its mixed use zone. (f) …the differences between the complex controls in cl 28D governing building heights and massing of development within the Centre and the more blunt building height controls within the mixed use zones provided by cls 29 and 30, is indicative of there being an incompatibility between the controls in cl 28D on the one hand and those in cl 29 and, relevantly, cl 30 on the other. As was observed by Gummow and Hayne JJ in Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at 138[18]; [2006] HCA 5 at [18], a case involving the implied repeal by a later statute of an earlier statute, inconsistency lay at the root of the principle of implied repeal and that deciding whether there is such inconsistency ('contrariety' or 'repugnancy') that the two cannot stand or live together (or cannot be 'reconciled') requires the construction of, and close attention to, the particular provisions in question. … (h) …Close attention to the particular and complex provisions of cl 28D indicate an appearance of exhaustiveness on the subject of building heights within the Centre thereby creating an incompatibility and inconsistency between it and cl 30. I do not think that one is departing from the ordinary natural meaning of inconsistency which, as Kirby P points out in Coffs Harbour , involves incongruity as well as incompatibility, by concluding that that incompatibility or incongruity or lack of harmony between the substance of the two provisions results not only from a comparison of the objectives and controls of each but also from the appearance of exhaustiveness on the same subject matter of cl 28D with respect to development within the Centre with the consequence, as mandated by cl 28A, that cl 28D prevails to the extent of the inconsistency over cl 30. … [61] Although it is true that the BHP prescribed by cl 30 imposes a specific control to be applied to the actual height of a specific building at the edges of the Centre, cl 28D also contains controls directed to that objective. Again I cannot with respect accept his Honour's conclusion at [37] where he rejected the appellant's argument that cl 28D provided an exhaustive statement on height, massing, overshadowing and building design within the Centre. The fact that cl 30 is consistent with a number of the objectives expressed in cl 28D masks the fact that there are also differences including, in particular, the significant differences between the nature of the controls in each provision designed to achieve those objectives.

At a glance

Court

Decision date

Before

Source

Judgment (131 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (31)