Delbant Pty Limited v North Sydney Council

DATES OF HEARING: 16 November 2005 EX TEMPORE JUDGMENT DATE : 11/16/2005

Applicant J A Ayling SC Pike Pike & Fenwick - Solicitors LEGAL REPRESENTATIVES:

Respondent C W McEwen SC Mallesons Stephen Jacques - Solicitors

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

05/10826 DELBANT PTY LIMITED v NORTH SYDNEY COUNCIL

JUDGMENT - On preliminary question in class 1 proceedings and costs 1 HIS HONOUR: The matter before the Court today is a preliminary question in class 1 proceedings. The class 1 proceedings are an appeal against the refusal to grant development consent to a development application involving, inter alia, demolition of an existing tennis court and associated concrete slab structure and column supports and the erection of a new dwelling. 2 The tennis court occupies the western higher part of the site. The tennis court was erected in the mid 1980s and at its southeast corner is elevated on columns more than three metres above natural ground level.

3 The site slopes steeply eastward from the tennis court level with a total cross fall of over 9.5 metres. A sandstone bench is located on the east side of the tennis court.

4 The applicable environmental planning instrument is the North Sydney Local Environmental Plan 2001 ("North Sydney LEP"). That instrument sets a number of development standards including in relation to building height (clause 17) and building height plane (clause 18).

5 Those standards employ as a reference point the concept of "existing ground level." "Existing ground level" is a defined term in clause 6 and schedule 2 of North Sydney LEP. "Existing ground level" is defined as follows: "Existing ground level means the level of the ground as at December 1997, as shown on the Council's digital photogrammetric maps dated December 1997."

6 The Council in the statement of issues filed raised a preliminary issue: "1. What are the relevant existing ground levels within the footprint of the proposed building given the proper legal construction of the definition of existing ground level in the North Sydney Local Environmental Plan 2001 ("NSLEP")?"

7 The parties requested the preliminary question be fixed for hearing before a Judge and by consent the Acting Registrar fixed the preliminary question for hearing today.

8 I should observe that the preliminary question as framed is not a question of law at all but purely a question of fact and was inappropriate to be fixed as a preliminary question. 9 Care must be taken in separating a preliminary question from the balance of matters to be tried. The desire to separately decide a preliminary question is often driven by a desire to save time and expense but an inappropriate preliminary question often results in the opposite result that is an increase in time and expense.

10 In many cases, the facts and law are so mixed up that it is undesirable to have a preliminary question. 11 A preliminary question may be appropriate where, either whichever way it is decided or upon being decided one way, the point might resolve the litigation or an issue of critical importance between the parties.

12 Another factor of relevance to determining whether a preliminary question is appropriate is if "the issue presented for decision is well defined and the facts upon which it has to be considered are clearly ascertainable": Radstock Co-operative & Industrial Society v Norton-Radstock Urban District Council [1968] 1 Ch 605 at 632.

13 In this case, the preliminary question as originally framed is, as I have noted, a question of fact. The answer would clearly depend upon the evidence to be adduced at the hearing. It was not appropriate to be set as a preliminary question.

14 The parties' counsel rightly recognised this fact and yesterday evening gave notice of a desire to amend the preliminary question. Today, by consent, the preliminary issue was amended to read as follows: "Whether for the purposes of applying the relevant provisions of the North Sydney Local Environmental Plan 2001, "existing ground level" at any particular point is to be determined solely by reference to what is shown on the Council's digital photogrammetric maps dated December 1997 regardless of actual ground level at such point, and if not, what other material may be relied upon to determine "existing ground level" as at December 1997?"

15 These questions (for there are now two) are an improvement on the former question but still have difficulties. The first question involves construing the definition of "existing ground level" in North Sydney Local Environment Plan 2001. Implicit in the first question is an assumption that the meaning of the definition is as stated in the first question. The second question arises only if the first question is answered in the negative. The second question proceeds to seek an advisory opinion on evidence. 16 Again the questions are not obviously appropriate for separate determination from the hearing of the appeal. The answer to the questions, whichever way they are determined, will not be conclusive of these proceedings. The questions are better defined than the original question but the second question is inappropriate.

17 Having made these general observations for the assistance of the parties and generally as to the appropriateness of preliminary questions, I will, as I have indicated, nevertheless proceed to determine the matter that has been fixed for hearing on this occasion.

18 The meaning of "existing ground level" is not its ordinary or natural meaning but rather is a defined meaning. The definition of "existing ground level" in North Sydney LEP works in two parts. The "existing ground level" is firstly defined as "the level of the ground as at December 1997." There is then a second part. The "level of the ground as at December 1997" is in turn defined to be "as shown on the Council's digital photogrammetric maps dated December 1997."

19 The definition therefore works as follows: For a particular point in space, one first determines the level shown for that point on the council's digital photogrammetric maps dated December 1997. The level shown is then deemed to be the level of the ground as at December 1997 and in turn that level of the ground as of December 1997 is deemed to be the existing ground level.

20 The words in the definition are clear and unambiguous. In these circumstances, nothing remains but to give effect to the unqualified words: Cooper Brooks (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304.

21 Mr McEwen SC, counsel for the Council, submitted that the words have another meaning for two reasons. First, he refers to the comma that follows the first part of the definition and precedes the second part. In my opinion, Mr Ayling SC, counsel for the applicant, is correct in saying that that comma is nothing more than a punctuation mark and does not serve to have the effect submitted by Mr McEwen of converting the second part to being purely adjectival. 22 Second, Mr McEwen submitted that if the second part is definitional of the first part, then the first part has no work to do. This is incorrect. There is an evident purpose in the definition being drafted in the way it has been drafted. The concept of existing ground level begs the question: existing as at what time?. That question is answered by the first part of the definition. It refers to existing as at December 1997. However, the next question that arises is: how does one establish what was the level of the ground at the time now specified, namely December 1997?.

23 If the second part of the definition had not been included, then evidence would need to be adduced to show what was the level as at December 1997. However, the second part of the definition serves to answer the question of what is the level of the ground as at December 1997. It says that the level will be as shown on the digital photogrammetric maps dated December 1997.

24 Now it may be true, as Mr McEwen has submitted, that those maps contain inaccuracies but one would imagine that that cuts both ways. Sometimes the maps may show a level that is higher than the level of the ground actually was at December 1997 but other times it may show it as lower.

25 On balance, however, the draftsperson has shown a preference for certainty over precisely defining the level of the ground as at December 1997. By defining the level of the ground as at December 1997 as being the level as shown on the Council's digital photogrammetric maps dated December 1997, certainty is given as to what is the level that is to be used ultimately in the definition of "existing ground level".

26 For these reasons, the preliminary question that has been amended for answer should be answered as to the first part, "yes", namely the existing ground level at any particular point is to be determined solely by reference to what is shown on the Council's digital photogrammetric maps dated December 1997 and as the second part, "does not arise".

27 It may be that as Mr McEwen said, that when that question comes to be answered in the hearing, minds may differ as to what is shown on the Council's digital photogrammetric maps dated December 1997 but that is a question for another day.

28 That suffices to answer the question. What do you want to do about costs? COUNSEL ADDRESSED ON COSTS

29 Mr Ayling, on behalf of the applicant, seeks costs in relation to the preliminary question. When a preliminary question of law or fact is fixed and determined separately from the trial, ordinarily there is merit in considering that the ordinary costs rule should apply. However, in circumstances where the preliminary question was fixed by consent, both when it was originally fixed and amended by consent on this occasion of its hearing, I consider that the appropriate order is that each party pay their own costs. Both parties, although they had a difference of opinion as to the construction of the phrase "existing ground level", nevertheless benefited from the Court considering and determining that question in advance of the hearing. No doubt that is why both parties consented to having the preliminary question determined now rather than at the hearing. In these circumstances, I consider that the appropriate order is that each party pay their own costs.

30 McEWEN: Does your Honour propose that the exhibits be returned?

31 HIS HONOUR: I will retain the ones that I extracted from the Court's file if that is appropriate. I will return exhibits 1, 2 and 3 but will retain exhibit 4 which is the plans and exhibit 5 which is the statement of basic facts.

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