2. Leave is granted to the applicant to substitute amended plans for the application plans in the proposal showing a void at ground floor level but otherwise in accordance with the application plans.

3. Within 14 days of this date, the applicant must :

(a) file with the Tribunal and serve on the responsible authority and the affected persons (being all persons who were given notice of permit application 269/98 and all persons who objected to permit application 318/99) the following documents :

(i) a full scale copy of the amended plans including shadow diagrams;

(ii) any documents relevant to the arrangements proposed by the applicant for carparking for residents of the proposed development;

(iii) a statement setting out the differences between the amended plans and the plans for permit application 269/98.

(b) serve on the affected persons a copy of these orders and an explanatory letter telling them the procedure they must follow if they wish to object to the amended plans or be joined as a party to the proceedings.

4. No later than 14 days from the date of service of the documents referred to in paragraph 3 of these orders on the affected persons, the affected persons must notify the Tribunal, the responsible authority and the applicant in writing if they object to the amended plans, provide the grounds of their objection and state if they wish to be made a party to the proceedings.

5. By 1 September 1999, the responsible authority must notify the Tribunal, the applicant and any objectors in writing whether it opposes the granting of a permit in respect of the amended plans.

6. The applicant must provide to the Tribunal confirmation of service of the documents on the objectors under paragraph 3 of these orders by filing :

* A copy of every document served including any covering letter. The copy of the amended plans shall stand as the copy to be filed with the Tribunal.

7. No later than 7 days prior to the hearing, the parties must file and serve a statement of evidence of each witness to be called at the hearing such statement to be signed and dated. A report of an expert witness will stand as a statement of that witness.

8. Fix for a hearing as a 1 day case at 10.00 a.m. on Monday 27 September 1999 at 55 King Street, Melbourne.

9. The parties have liberty to apply to the Tribunal for further directions.

Mr Ragu Appudurai of counsel instructed by Maddock Lonie & Chisholm, represented the responsible authority.

Mr Kel Twite of SJB Planning represented Bensmere Pty Ltd and Mr N Golusin, owners of Nos 2, 4, 8 and 10 Anchor Place.

Mr John Cicero, solicitor of Best Hooper, represented the applicant.

1. This is an application under Section 77 of the Planning and Environment Act 1987 (the Act) brought by Clapana Pty Ltd to review a decision of the City of Stonnington ("responsible authority") to refuse to grant a permit in application No 269/98.

2. The application plans indicate that the proposal in respect of the permit which is sought is a five storey building with a height of 15 metres containing six flats and car parking on the ground floor level.

3. The subject land is situated at 3-9 Anchor Place, Prahran.

4. The subject land is in Prahran District Centre Zone No 2 and Height Control Area 71 in the City of Stonnington Planning Scheme ("the Scheme"). It is also subject to an Urban Conservation Area Overlay.

5. Subsequent to the refusal by the responsible authority of the permit application No 269/98 ("the first application"), a further permit application No 318/99 ("the second application") was made by the applicant. The second application is for a four storey building containing six flats with a void at the ground floor level. The second application has been advertised but at the time of hearing before the Tribunal the period for lodging of objections had not closed. A further application No 458/99 for use and development of the ground floor of the building as a commercial car park has also been lodged with the responsible authority by the applicant ("the third application"). At the time of hearing the application had not been advertised.

6. At the commencement of the proceedings Mr Nick Golusin was made a party to the proceedings.

7. The application plans in respect of the first application include eight car parking spaces at ground floor level for the use of the occupants of the flats. It was conceded for the applicant that the use of the ground floor level in this manner is that of a flat and that it is prohibited because it does not comply with the conditions attached to the use "Flat" set out in Clause 108-1.1 of the Scheme. That condition is expressed in terms that a flat "must not be at ground level and have a frontage .... to any street and, must comply with Clause 106-10". Under Clause 106-10 an application must show that provision has been made for adequate car parking.

8. The applicant sought leave to amend the application plans by deleting reference to car parking at ground level. The space would instead be marked as a "void". The solicitor for the applicant indicated that the applicant is prepared to accept as a condition of the planning permit that the use of the land for residential purposes must not commence until it has produced an agreement to the satisfaction of the Responsible Authority which provides for the provision of eight car parking spaces either within the property immediately to the east of the application site or within the public car park operated by Wilsons.

9. At the commencement of the proceedings, the applicant sought a determination from the Tribunal of a preliminary issue of whether the application is prohibited by virtue of Clause 106-4 of the Scheme. In the event a determination is made that the proposal is prohibited, the applicant seeks leave to substitute the plans lodged with the second application for the plans lodged with the first application.

10. The Tribunal indicated that it would hear and determine the preliminary issue and also seek submissions from the parties as to the applicant's application to substitute plans for the application plans. Orders in relation to the filing of written submissions were made by the Tribunal at the conclusion of the proceedings.

11. The preliminary issue for determination in relation to Clause 106-4 is two-fold and concerns the following questions :

(a) Is the proposal prohibited under the clause in that it exceeds the "Absolute Maximum" number of storeys for area HC 71 of four storeys.

(b) Is the proposal prohibited under the clause because it concerns a building which is higher than an abutting Significant Building?

12. A further issue for determination is whether the applicant should be permitted to substitute plans for the application plans and if so, in what circumstances.

13. The relevant provisions of Clause 106-4 of the Local Section of the Stonnington Planning Scheme are as follows :

The Prahran District Centre is divided into 5 Height Control Areas (see Stonnington Planning Scheme Map Nos 1HC and 4HC). Permitted heights for the 5 areas are set out below.

Buildings and works must not exceed the preferred height or number of storeys for the relevant areas, shown on the Table below, unless otherwise agreed to by the responsible authority.

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The responsible authority may permit buildings and works up to the absolute maximum height or number of storeys shown on the Table to Clause 106-4 only where it is satisfied that :

v The proposed building does not replace all or part of a Significant Building.

v The design respects the architectural character of the existing building, where extensions are proposed, or otherwise of nearby buildings.

v The building does not detract from the streetscape.

v The building is not higher than any abutting Significant Building.

v Traffic and parking likely to be generated by use of the building can be accommodated in the street system.

For the purpose of this clause the height of any building or works is measured from footpath level at the centre of the frontage of the site to the highest part of the building or works".

Issue relating to Absolute Maximum Height or Number of Storeys

14. It will be recalled that the application plans provide for a five storey building with a height of 15 metres. The "absolute maximum height or number of storeys" specified in the table to clause 106-4 for area HC71 is 15 metres or 4 storeys. It was contended for the applicant that the proposal is not prohibited simply because it exceeds the maximum number of storeys allowed within area HC71.

15. The solicitor for the applicant referred to the words in the preamble to the Table in Clause 106-4 stating :

"Buildings .... must not exceed the preferred height or number of storeys for the relevant areas, shown on the Table below, unless otherwise agreed to by the responsible authority". (emphasis added).

He also referred to the words immediately below the Table which state that the

The responsible authority may permit buildings and works up to the absolute maximum height or number of storeys shown on the Table .....

16. He submitted that by the use of the conjunction "or" as opposed to "and", the clause imposes two alternative requirements rather than two cumulative requirements and this was the meaning ordinarily attributed to the word "or". Further, whilst courts have on occasions interpreted "or" to mean "and", they have done so in the light of the context or for some other good reason. Reliance was placed on the decision of Williams v Lee (1992) 75 LGRA 8 at p.12.

17. In Williams v Lee the Supreme Court considered the provisions of Clause 115 of the Brighton Planning Scheme in the context of height controls. The Scheme provided as follows :

A building or works constructed in HC77 must not exceed 2 storeys, excluding any basement, or 6 metres.

Except with a permit, a building must not be constructed in HC77, if any storey exceeds a height of 3.5 metres".

18. Smith J, with whom Brooking and Marks JJ agreed, said by way of obiter that the height controls imposed by Clause 115 of the Brighton Planning Scheme imposed alternative and not cumulative limits of 2 storeys or 6 metres. At pages 12 and 13, his Honour said :

"Turning to the merits, the appellants argued that the clause imposes two cumulative, not alternative, limits - two storeys and 6 metres. They are faced, however, with the problem that the two limits are joined in the clause by the word "or" not the word "and". While courts on occasions have interpreted "or" to mean "and" they have done so in the light of the context or for some other good reason. The context here suggests otherwise.

The context also includes, in the next sentence of the clause, a requirement that no storey should exceed 3.5 metres unless a permit is obtained. This is precisely the sort of provision you would expect to find if the limits described earlier were alternatives. For if the primary limit requirement could be satisfied by a two-storey development there would be a danger of people putting forward proposals for very high two-storey buildings and the controls being worthless. Again this is countered by the applicant pointing to the possibilities of buildings on sloping sites and the need, if their interpretation is correct, to being able to limit the height of the storeys where the slope is such that more than two storeys or two very high storeys might be built. This explanation again involves interpreting the clause in an unnatural way to address a most unusual situation in circumstances where it is difficult to see why it is necessary to achieve appropriate height controls. It is more likely that the limit was intended to be of general application and that it confirms that the references to two storeys and 6 metres in the preceding sentence are alternatives".

19. It was submitted for the responsible authority that items connected by "or" in Clause 106-4 should be treated as being cumulative rather than alternative. On this basis Clause 106-4, by its terms, imposes both an absolute maximum height in metres and an absolute maximum number of storeys in the relevant Height Control Area within the Prahran District Centre as set out in the Table to the clause. It was submitted that the scheme of Clause 106-4 is to allow buildings which do not exceed both the preferred height and the preferred number of storeys within HC 71 (subject to the permission of the responsible authority) and to invest specific discretion in the responsible authority to permit a building up to but not exceeding both the absolute height and the absolute maximum number of storeys.

20. It was further submitted for the responsible authority that the Table to Clause 106-4 (when read in conjunction with the text of the clause) is such that the word "Preferred" is applicable to both "Height" and "Storeys" and both the words "Absolute" and "Maximum" are likewise applicable to both "Height" and "Storeys".

21. It was also submitted for the responsible authority that the terms of Clause 105, imported into Clause 106 by Clause 106-2, Clause 106-2 itself and Clause 143 provide further support for the interpretation of Clause 106-4 contended for by the responsible authority.

22. Counsel for the responsible authority also relied on the decision of Williams v Lee. He referred to the fact that the provision in the Brighton Planning Scheme limiting the height of a storey to more than 3.5 metres unless a permit was obtained was absent from the Stonnington Planning Scheme. Such absence could result in the danger referred to by Smith J. of people putting forward proposals for very high buildings which were nonetheless within the limit of storeys relevant to the area.

23. It was contended for the objectors that the scheme imposes a maximum height on the subject land of 15m and four storeys for reasons similar to those contended for the responsible authority.

Findings in relation to Absolute Maximum Height or Storeys.

24. In Maxwell, The Interpretation of Statutes (12th ed, 1969) at pp.232-233, the editor states:

"In ordinary usage, `and' is conjunctive and `or' is disjunctive. But to carry out the intention of the legislature, it may be necessary to read `and' in place of the conjunction `or', and visa versa".

25. In our view, there is no justification for failing to give the word "or" its ordinary meaning in the context in which it appears in Clause 106-4. On this basis we accept the submission for the applicant that the word "or" imposes two alternate requirements rather than two cumulative requirements.

26. Whilst the Stonnington Planning Scheme does not contain any limitation on the height of a storey as was the case in Williams v Lee, there are other safeguards provided for in the Stonnington Scheme to allow for the situation of extreme height. For example, a permit for a five storey building in the area HC 71 might be refused by the responsible authority in the exercise of its discretion in respect of dot point 5 of Clause 106-4 because traffic and parking likely to be generated by use of the building cannot be accommodated in the street system or in respect of dot point 3 because the proposed building detracts from the streetscape.

27. Clause 106-1 provides additional safeguards against an excessively high building. It states that in the Prahran District Centre Zone (in which the proposal is located), a permit is required to construct a building or construct or carry out works. Pursuant to Clause 106-2 the Responsible Authority is required to consider a number of matters when deciding an application for a permit. Those matters include the orderly planning of the zone as an integral part of the Prahran District Centre and the character and amenity of the zone. If, for example, a proposal involved a building height within the "preferred" number of storeys in area HC71 referred to in the table to clause 106-4 but it was excessively high, it could be refused because it was incompatible with, for example, the character and amenity of the zone.

28. Counsel for the responsible authority submitted that clauses 105, 106-2 and 143 provide support for the interpretation of clause 106-4 argued for the responsible authority. It is not clear how those clauses assist such an interpretation. They do not seek to impose height controls (indeed in clause 105-1 the role and function of the Prahran District Centre includes the provision of "both large and small scale premises) but deal with a number of considerations, including amenity.

29. As to the relevance of the words "Absolute Maximum" above the words "Height and Storeys", it is our view that they do no more than indicate that the responsible authority may permit buildings and works up to the absolute maximum height or storeys but its discretion does not extend beyond those absolute maximum height or storeys.

Issue relating to Abutting of a Significant Building

30. It will be recalled that Clause 106-4 provides that "the responsible authority may permit buildings and works up to the absolute maximum height or number of storeys shown on the table to clause 106-4 only where it is satisfied as to a number of matters. Those matters include that -

1. "The building is not higher than any abutting Significant

31. A "Significant Building" is defined in the Scheme as :

"A building of architectural or historical significance which is identified by the City of Stonnington as a category A1, A2 or B building".

32. It does not appear to be in dispute that immediately to the west of the subject land is a building known as the Globe which has an A2 grading under the responsible authority's Conservation Study.

33. Neither does it appear to be in dispute that the Globe and the proposed building are not attached to each other but are separated by several metres and located on different titles.

34. It would appear the responsible authority is contending that the proposed development is prohibited because it is higher than any abutting significant building. However, the matter was not argued in any detail by counsel for the responsible authority.

35. It was contended for the objectors that it is the intention of the clause to ensure that proposed development on sites neighbouring Significant Buildings do not have an overbearing or imposing impact on the Significant Building. As we understand the contention for the objectors, "abutting" in the context in which it appears in Clause 106-4 does not mean that the buildings need to touch each other.

36. It was contended for the applicant that the statutory context in which the word "abutting" is used and the use of the word "abutting" as opposed to the words "adjoining" and "nearby" used in other provisions of the Scheme including Clause 106-6 support a meaning of abutting as touching. The solicitor for the applicant referred to a number of authorities which he said supported the view that "adjoin" is not interchangeable with the word "abut".

Findings in relation to Abutting of a Significant Building

37. The Concise Oxford Dictionary Sixth Edition defines "abut" as follows :

"1. (Of estates or countries) have common boundary, border on; (of part of building) end on or against, lean on."

38. Butterworths Australian Legal Dictionary defines "abut" as :

"Touching the end. To join at a border or boundary".

39. Stroud's Judicial Dictionary Fifth Edition in defining "abut" states that "abut does not always import actual contiguity".

40. It would appear from the definitions just referred to that whilst "abut" indicates contiguity it does not have always have such a meaning. Authorities to which the solicitor for the applicant referred the Tribunal such as Traill v Rural City of Wodonga and Ors 3 AATR 107 at 119, a decision of Jones J. indicate that words such as "adjoin" should be given a common sense meaning having regard to the context in which they are found. In our view, the meaning of the word "abutting" in the context of clause 106-4 should be considered in a similar manner.

41. The provisions of the Scheme indicate that a distinction has been made between "abutting Significant Building" and "a building on a site abutting the site of a significant building". For example, Clause 143-5A states in part:

Except in accordance with a permit, a building on a site abutting the site of a significant building must comply with the following requirements :

* If the site abuts significant buildings on more than one side and if :

- if the site abuts a significant building on only one side, the height of the building must not exceed the height of the significant building".

42. The Tribunal was not provided with an historical analysis of the manner in which the provisions of the Scheme came into effect. Such an analysis might cast some light on the reasons for the distinction just referred to. In the absence of such material, we have formed the view that it was intended to differentiate between abutting Significant buildings and sites abutting sites of a Significant Building and that "abutting" in Clause 106-4 means touching.

43. As to the use of the words "adjoining" and "nearby" used in the Scheme, it is our perception that the language is used with a certain inexactitude and that there is no clear plan or arrangement as to the use of the language. Accordingly, we are unable to derive assistance from the Scheme's use of the word "abut" and cognate expressions elsewhere.

44. On our interpretation of the words "abutting Significant Buildings" in clause 106-4, the proposal is not prohibited under Clause 106-4 in that the proposed building is not higher than any abutting Significant Building.

44. It would appear that notwithstanding such a finding the applicant might require a permit under Clause 143-5A because the site of the proposed building abuts a significant building on one side and is higher than the significant building. This is a matter for the responsible authority to consider as part of the exercise of its discretion to grant a permit.

45. The applicant sought the substitution of amended plans for a five storey building containing six flats with a void at ground floor level in the event that the Tribunal found that the development was not prohibited under Clause 106-4. The responsible authority and the objectors did not oppose such substitution subject to satisfactory conditions being put in place as to notice to objectors.

46. We have determined that leave should be granted to the applicant to substitute amended plans for the application plans in accordance with the orders set out above.