Druitts Developments Pty Ltd v Gosford City Council

1. At the outset of the hearing of these class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 against the Council's deemed refusal of the Applicant's development application for the development of land known as Nos 5 and 7 Ficus Ave, Avoca (the development site) the parties have asked the Court to determine three preliminary questions. These questions are as follows: (i.) Whether the development site is land included in Schedule 1 to State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP No 5). (ii.) Whether the Applicant's development application (the subject of the present proceedings) is to be determined according to the terms of SEPP No 5 as currently in force or as they were in force immediately before their amendment on 1 December 2000 by virtue of the coming into force of SEPP No 5 (Amendment No 1). (iii.) Whether the proposed development contains more than "two storeys in height" within the meaning of cl 13(2)(b) of SEPP No 5.

2. The only relevant evidence adduced in respect of the three questions is documentary. This is all that is necessary except for the first question where the parties agree that there will be the need for further evidence depending upon my adjudication upon the question which, at this stage is necessarily limited to determining the proper interpretive approach to Schedule 1 to SEPP No 5. Because of the limits of the competing argument addressed to question 1, it is preferable to recast the question so that it asks what is a truly preliminary question, which may be formulated as follows:

Whether the express objectives in respect of Zone No 2(f) designated by the Gosford Planning Ordinance (which operates as a deemed environmental planning instrument) declaring land within the zone to be subject to hazard from coastal erosion or storms (or both) are a potential source for the identification of environmentally sensitive land falling within the ambit of Schedule 1 to State Environmental Planning Policy No 5

3. If this preliminary question in answered in the affirmative, it will become necessary to consider question 1 as originally propounded, but only after the Court has considered the competing evidence that the parties wish to adduce on this issue.

4. I propose to separately consider each of the questions.

5. Clause 4 of SEPP No 5 specifies in subclause (1) the "land to which it applies" (cf s 39(5) of the EP&A Act) namely "land within New South Wales: (a) that is zoned primarily for urban purposes, or that adjoins land zoned primarily for urban purposes; and (b) on which development for the purpose of any of the following is permitted: (i) dwelling-houses; (ii) residential flat buildings; (iii) hospitals; (iv) development of a kind identified in respect of land zoned for special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries.

6. However subclause (2) provides that the Policy does not apply to - (a) land described in Schedule 1 (Environmentally sensitive land); or (b) the land to which Sydney Regional Environmental Plan No 17 - Kurnell Peninsula applies.

Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions: · coastal protection · conservation (but not land identified as a heritage conservation area in another environmental planning instrument) · critical habitat · environment protection · open space · escarpment · floodway · high flooding hazard · natural hazard · high bushfire hazard · scenic (but not land that is so identified if: (a) the land is within a residential zone in which development of two storeys or more in height is permitted; or (b) an adjacent residential zone, also identified as scenic, permits development of two storeys or more in height) · water catchment · natural wetland

It is apparent that subclause (2) has the potential to operate an exception to subclause (1) ie in a situation where the land so described in Schedule 1 is also relevantly "zoned primarily for urban purposes" on which development for the purposes of "dwelling houses" is permitted.

It is common ground that the development site is included in Zone No 2(f) under the Gosford Planning Scheme Ordinance (the LEP being a "deemed environmental planning instrument"): Exhibit 3. It is also common ground that such Zone is "primarily for urban purposes on which development for the purposes of dwelling-houses is permitted". Hence, it is not in dispute that the development site falls within the ambit of cl 4(1). However, the question in dispute is whether it is excepted by force of subclause (2) ie is it relevantly "environmentally sensitive land"?

Zone No 2(f) is designated by the words "Residential (Beach Frontage)", which words do not themselves correspond to any of the verbal descriptions contained in Schedule 1 to SEPP No 5.

According to cl 10(1) of the LEP, the objectives of each of the several zones created by the LEP are set out in the Table to the clause. For Zone No 2(f), the relevant objective is stated as follows:

The objectives of Zone No 2(f) is to ensure that low scale development on land situated in proximity to public areas or identified as being subject to hazard from the coastal erosion and storms (or both) is located and constructed so as to avoid or minimise the potential hazard and minimise visual impact

Both the text of cl 4(2) of SEPP No 5 and the heading to Schedule 1 employ the expression "environmentally sensitive land".

The text of Schedule 1 thereafter gives scope and meaning to that expression by enumerating verbal descriptions of relevant lands that are "identified in another environmental planning instrument" by way of description contained in the enumerated matter or "by like descriptions" or "by descriptions that incorporate any of the following words or expressions" (being the words or expressions comprising the enumerated matter).

It is, in my judgment, tolerably clear that the adopted means of identification (for the purposes of Schedule 1 to SEPP No 5) of relevant environmentally sensitive lands by "another environmental planning instrument" is via a deliberately flexible verbal formula principally by reference to the several verbal descriptions that are contained in Schedule 1 but additionally by reference to (i) "like descriptions" (meaning thereby, similar verbal descriptions) or (ii) descriptions that "incorporate" (meaning thereby, "include" or "embody") any of the verbal descriptions contained in Schedule 1. The expression "by descriptions that incorporate any of the following words or expressions" is somewhat ambiguous, but I think it is tolerably clear that the reference to "following words or expressions" is intended as a reference to the whole of any one of the verbal descriptions contained in the Schedule, rather than as a reference to part of any one of the verbal descriptions. For example, to take the first mentioned verbal description in Schedule 1, it is the incorporation of "coastal protection" rather than the incorporation of the word "coastal" or the word "protection" that is intended.

The deliberate flexibility in the adopted means identifying relevant lands employed by Schedule 1 is to be contrasted with the more rigid means of identification of such lands that was employed in the earlier version of SEPP No 5 which referred in terms to "land…which is within an area or zone (within the meaning of an environmental planning instrument) identified in that instrument by a verbal description or by a cognate description or a description including a word or word so used".

A very similar formulation to this earlier version of lands excluded from the application of SEPP No 5 was considered by Stein J (as he then was) in Invergowrie Properties Pty Ltd v Willoughby City Council (1992) 78LGERA 67 in the context of State Environmental Planning Policy No 25 - Residential Allotment Sizes and Dual Occupancy Subdivision where his Honour held at 69 that "the prefatory words….require that the land be within an area or zone under an environmental planning instrument and identified in the instrument by the description following".

In that case, Stein J was considering the effect on the Schedule (describing lands to which the State Policy did not apply, of the notation or depiction on the map forming part of a local environmental plan that certain lands were within a "Foreshore Scenic Protection Area" in circumstances where the text of the planning instrument itself contained no reference whatsoever to that depiction or notation on the map (see at 67) and in circumstances where the Schedule relevantly included the following verbal descriptions: (m) Scenic (n) Scenic Protection

Having concluded that the depiction or notation of lands within a "Foreshore Scenic Protection Area" was not embraced by the relevant verbal descriptions in the Schedule or words "cognate" thereto, his Honour considered at p 69 whether the depiction or notation was embraced by the category of "verbal description plus any other word".

But for the express exclusion contained in the Schedule of the verbal description "Scenic Protection" plus any other words, his Honour expressed the opinion that "foreshore scenic protection" would obviously qualify. However, because of that express exclusion, his Honour rejected the argument that the verbal description "scenic" could be used with the words "foreshore….protection" since acceptance of such argument would render nugatory the express exclusion of the verbal description "scenic protection" in combination with any other words, leading to "a nonsense or absurdity" (at 70).

The fact that the current version of SEPP No 5 (which came into force on 14 February 1998 and repealed the earlier version of the Policy) deliberately abandoned the concept of "zone" or "area" in the definition of lands to which SEPP No 5 does not apply is a telling factor against acceptance of the Applicant's principal argument that it is the nomenclature or terminology of "zones" designated by or under "another environmental planning instrument" that provides the true reference point for the application of the verbal descriptions contained in Schedule 1 to SEPP No 5.

In my judgment, this argument must be rejected because it fails to come to terms with the obviously flexible means of identifying relevant lands that has been deliberately adopted by Schedule 1 (particularly in view of the legislative antecedents to such "means" that were found in the earlier version of SEPP No 5).

In response to the Council's principal argument that land could be relevantly identified for the purposes of Schedule 1 to SEPP No 5 by the objectives of Zone 2(f) expressly contained in the LEP, the Applicant argued that if zone objectives could provide the requisite source of identification of relevant "environmentally sensitive lands", then problems of precise identification would be apt to be encountered because in their nature, zone objectives tended to be expressed in vague terms or in some cases in disparate, if not mutually contradictory, terms. In the present case, it was apparent that the zone objective was at least a mixed one, dealing with "low scale development" on land which was either (i) situate in proximity to public areas or (ii) identified as being subject to hazard from coastal erosion and storms (or both) to ensure that such development was located and constructed in the case of the former land "to minimise visual impact" and in the case of the latter land "to minimise the potential hazard".

In my opinion and subject to what I shall presently say about the requirement that the environmental planning instrument relevantly "identify" relevant environmentally sensitive land, I do not accept the Applicant's argument that reference to zone objectives would create such unreasonable or inconvenient or unjust results as to warrant, as a matter of construction, outright rejection of even the possibility that the zone objectives may be held to be a source of identifying relevant land for the purpose of Schedule 1 to SEPP No 5.

In so concluding, I would refer to the importance of express zone objectives (which are now commonly included in environmental planning instruments) in the administration of planning law that is now well established in cases such as the present, where there is imposed upon a consent authority the obligation to ensure that any development to which it proposes to grant consent is "consistent with" (or other similar expression) the relevant zone objectives.

Indeed, a number of recent decisions of the Court of Appeal have held that such provisions operate as "conditions precedent" to the grant of a valid consent: see Franklins Limited v Penrith City Council (1999) NSWCA 134; Schroders Australia Property Management Ltd v Shoalhaven Council (2001) NSWCA 74.

In the present case, cl 10(3) of the LEP provides as follows:

The Council must not grant consent for development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development within those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development.

It remains for me to consider the question whether the zone objectives to Zone No 2(f) under the LEP in expressly postulating that land within the zone is "identified as being subject to hazard from coastal erosion and storms (or both)" is itself a source of identification of relevant environmentally sensitive lands for the purposes of Schedule 1 to SEPP No 5.

In my judgment, in order for that stated objective to qualify as a relevant source of identifying relevant lands for the purposes of Schedule 1 to SEPP No 5, two conditions must be satisfied, namely - (i.) the expression "subject to hazard from coastal erosion and storms (or both)" must satisfy the verbal description of Schedule 1 by being either a "like description" or a "description that incorporates" any of the verbal descriptions contained in Schedule 1 (since it is obvious that the expression does not correspond, in terms, with any of the verbal definitions contained in Schedule 1); and (ii.) it must be legitimate for the precise identification of the land postulated in the zone objective to be "subject to hazard from coastal erosion and storms (or both)" to be achieved by reference to "another document or to extrinsic facts" (being an expression employed by Gibbs CJ in giving one of the majority judgments in Dainford Ltd v Smith (1985) 155 CLR 342 at 348).

Is each of these conditions satisfied in the present case?

As to the former condition, I am of the opinion that the expression employed in the Zone objective is a description of land that is "like" the following verbal descriptions contained in Schedule 1, namely:

As to the latter condition, I am of the opinion that it is legitimate to perfect or complete the identification process of relevant land that is "subject to hazard from coastal erosion and storms (or both)" by reference to another document or to extrinsic facts, provided that that result is sufficiently certain. In so holding, I am assuming that the requirement of identifying relevant lands for the purpose of Schedule 1 requires some precision, on my understanding that the Zone objective does not, itself, precisely define what lands within Zone No 2(f) are relevantly "identified as being subject to hazard from coastal erosion and storms (or both)". I am here assuming, that the objective was not intended to operate, nor does it operate, on the basis that all lands within Zone No 2(f) have been so identified.

However, it may be the case that Schedule 1 does not require precise survey delineation or definition of the relevant lands by virtue of the fact that the express means of identification is by "verbal description" in terms of the text of Schedule 1, rather than by reference to land or survey boundaries etc. In any event, the means employed (namely verbal description) is, as I have already pointed out, an obviously flexible means, bearing, in my judgment the interpretive consequence, as a matter of context, that the requisite "identification" need not be in the form of precise land survey detail.

Notwithstanding these features of the text, yielding uncertain indications, I am prepared to hold that Schedule 1 adopts the higher requirement for "identification" of relevant lands, albeit in terms of the verbal descriptions contained in Schedule 1, in the sense that it must ultimately be established that a finite piece of land is relevantly so identified. However, in my opinion, it is legitimate that such ultimate identification be achieved by reference to another document or to extrinsic facts provided that the result is sufficiently certain. In so concluding, I have respectfully adopted the line of reasoning that commended itself to the majority judgments of the High Court in Dainford's case, and most especially in the Chief Justice's judgment at 348.

Accordingly, I would answer the first question in the affirmative, recognising however, that the parties have not yet adduced their competing evidence on the question of whether, and if so to what extent, the development site is relevantly identified as being subject to "hazard from coastal erosion and storms (or both)".

It is common ground that SEPP No 5 was substantially amended by SEPP No 5 (Amendment No 1) which was published in Government Gazette No 148 of 17 November 2000 and which by cl 2 commenced "14 days after the day on which this Policy is published in the Gazette" ie on 1 December 2000. It is common ground that Amendment No 1 itself contained no savings or transitional provision.

It is also common ground that the Applicant lodged its development application with the Council on 30 November 2000.

Whereas it is settled law that the Court, in hearing and determining a development appeal, is engaged in an exercise of original jurisdiction (see Randwick Municipal Council v Janez Constructions Pty Ltd (1976) 35 LGRA 70 and Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630) and that in consequence, it must apply the relevant planning law as in force at the date of its determination, the Council submitted that by virtue of cl 26 contained in SEPP No 5 as originally made (and when it came into force on 14 February 1998) the relevant planning law was SEPP No 5 unaffected by Amendment No 1.

Clause 26 is contained in Pt 4 of SEPP No 5 as originally made which Part is headed "Transitional provision". The clause provides as follows:

A provision of this Policy does not apply to or in respect of the determination of a development application made, but not determined, before the commencement of the provision.

The Council's argument was to the effect that cl 26 should be given an ambulatory effect so that it continued to operate whenever any amendment was made to SEPP No 5.

In my judgment, cl 26 is clearly a transitional provision made in consequence of the making of SEPP No 5 and its concurrent coming into force (vide cl 2) and repealing of the earlier version SEPP No 5 (vide cl 5).

Accordingly, its prima facie meaning and operation is in respect of a development application "made, but not determined" before the commencement of the Policy. It is true that cl 26 does not refer (as it could have) in terms to "the Policy", as an entirety, but rather refers to "a provision of this Policy". However, nothing turns on this choice of language, because (i) "the Policy" comprises the sum of each of the provisions contained within it; and (ii) the natural meaning of the text is that it is referring to a "provision of the Policy" as it was originally enacted (ie made and brought into force pursuant to s 34(5) of the EP&A Act). This natural construction of the text is supported by the clear fact (attested by both the heading to Part 4 of SEPP No 5 (which is part of the text: see s 35(1) of the Interpretation Act 1987) of cl 26 itself) that the provision is a transitional provision of the conventional kind when one legislative or delegated legislative regime is repealed (in whole or part) and is replaced by another regime.

The context and clear transitional purpose of cl 26 in my judgment, firmly shuts out the Council's argument that the clause should be given an ambulatory operation in the manner I earlier have indicated.

Accordingly, for the foregoing reasons, I would answer the second question by holding that the determination of the Applicant's development application is to be made according to the current operation of SEPP No 5, ie as amended by Amendment No 1.

13 Development standards - building height and street frontage (1) General

A consent authority must not consent to a development application made pursuant to this Part unless it complies with the standards specified in this clause. (2) Height in zones where residential flat buildings are not permitted

If the development is proposed in a residential zone where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less; and (b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height. (3) Site frontage

It is common ground that subclause (2) applies in the present case because (i) Zone No 2(f) under the LEP does not permit residential flat buildings; and (ii) the proposed building is "adjacent to a boundary of the site".

The Dictionary to SEPP No 5 contains definitions of "height", "floor space ratio" and "gross floor area". It does not define "storey".

However, cl 6A casts some light on the intended meaning of the word "storey" by providing as follows:

In calculating the number of storeys in a development for the purposes of this Policy, a car park that does not extend above ground level by more than 1 metre is not to be counted as a storey.

noting that the Dictionary to SEPP No 5 defined "ground level" as meaning

the level of the site before development is carried out pursuant to this Policy

The effect of cl 6A is that a storey may comprise a carpark level cf MLC Properties v Camden Council (1997) 96 LGERA 52 at 56 per Lloyd J.

Contextual considerations apart, the word "storey" appearing in cl 13(2) is to be given its ordinary and natural meaning. The Macquarie Dictionary provides the following meanings:

1. a complete horizontal section of a building, having one continuous or approximately continuous floor;
2. the set of rooms on the same floor or level of a building;
3. each of the stages separated by floors, one above another, of which the building consists

The Shorter Oxford Dictionary includes the following meanings of "storey"

1. each of the stages or portions one above the other, of which a building consists; a room or set of rooms one floor or level

The Shorter Oxford Dictionary meaning of "storey" was adopted by Samuels JA in the Court of Appeal's judgment in Leichhardt Municipal council v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29 where the Court was considering the effect of a prohibition in a planning instrument on the erection of a building "containing more than four floors or more than three storeys" in a statutory context where "floor" was not defined but "storey" was defined to mean

A floor other than a floor - (a) used principally for storage; or (b) used wholly or partly for parking

In that case, the Court was required to interpret the statutory prohibition and then to apply it to a factual situation involving a proposed development in the form of a stepped building containing 7 different levels.

Although cl 3(1) of the ordinance defines storey in terms of floor , and not the other way about, I think that floor in cl 51 bears the meaning attributed to storey by the Shorter Oxford English Dictionary , namely, each of the stages or portions one above the other of which a building consists . I would add levels as a current and relevant synonym for stages or portions . But the phrase one above the other does not mean one directly above the other , because above does not ordinarily mean directly above i.e. in precisely the same vertical plane, but only higher than. Usually, it is true, the floors, storeys or levels of a building are found directly one above the other or others; but this circumstance cannot determine the meaning ordinarily given to those words. The idea of multiple or comparative levels involves difference in the horizontal plane. Hence a difference in level is established whenever one object, assuming a common datum point, is higher or lower than another. In that event there are two levels, even though the higher level is not superimposed directly above the lower. Assume a building, stepped back into a rising slope with ten steps incorporated in its structure, none of which is directly above the step below, in the fashion of the treads and risers of an ordinary staircase. I do not see how it would be possible to conclude otherwise than that this was a building which contained ten levels or floors; the alternative being to say that it contained only one.

In my opinion, floor in cl 51 means an interior level forming part of the structure of the building. In order to ascertain whether this building contains more than three floors it is necessary only to start at the bottom and count the different interior levels as they ascend.

The word storey, it seems, is always used to denote a structural feature of a building. Floor, on the other hand, is sometimes used in that sense but at other times denotes merely a feature of an enclosed space. It is clear that the ordinance uses floor in the former sense. So the problem in point of construction is to decide what meaning the terms floor and storey bear in a clause which says that a building may not contain more than a certain number of them. I do not think that the prohibition is simply directed to the number of horizontal levels in the building. I think that it is directed to those levels in the building which form part of its structural unity as a building. A house which to an external viewer has one storey only may be so designed that in some rooms on the ground floor the floor level is higher than in others. I do not believe that it would accord with ordinary linguistic usage to describe it as a two storey house. This suggests to me that one determines the number of floors or storeys in a building not by counting the number of different levels in it but by counting the number of levels of approximately similar floor area ranged above the ground floor in a vertical plane and incorporated in its structure and then adding one. I would stress ground floor and not ground. If a building has six levels vertically superimposed above each other and three of them are below ground level it would according to this construction be a six-storey not a three-storey building.

Although in the present case the proposed development is not in the form of a stepped building, I would respectfully adopt the same approach to the interpretation of 'storey" that was taken in the separate judgments of Glass JA and Samuels JA in Daniel Callaghan.

In so proceeding, I should note that the Council's argument that the proposed development involves a building of "more than two storeys" does not depend upon cl 6A of SEPP No 5.

Rather, the Council's argument depends upon the provisions of State Environmental Planning Policy No 6 - Number of Storeys in a Building and in particular, upon cl 6 which provides as follows:

(1) Where the application of a provision of an environmental planning instrument requires a determination of the number of storeys, floors or levels which a building contains, that number shall, for the purposes of applying the provision, be deemed to be the maximum number of storeys, floors or levels, as the case may be, of the building which may be intersected by the same vertical line, not being a line which passes through any wall of the building.

(2) Except as provided by subclause (3), when applying subclause (1) in relation to a provision referred to in that subclause, a reference in subclause (1) to storeys, floors or levels shall be treated as a reference to storeys, floors or levels, within the meaning of the provision.

In my judgment, cl 6 of the State Policy No 6 does not elucidate either the meaning of "storey" to be adopted for the purposes of cl 13(2)(b) of SEPP No 5 or the application of that adopted meaning to the facts of the present case (which are relevantly limited to the details of the proposed development as depicted on the development application plans Exhibit A).

Having concluded that the meaning to be given to 'storey" for the purposes of cl 13(2)(b) of SEPP No 5 is that which reflects the very similar approaches adopted by Glass JA and Samuels JA in Daniel Callaghan (ie essentially adopting the principal dictionary meaning of that word) it remains for me to apply that adopted meaning to the facts of the case as revealed by the development application plans of the proposed development (Exhibit A).

Those plans depict the proposal in two building blocks or sections - (i) the northern section comprising an aggregate of six residential units located on two separate floors (having RL's of 4.5 and 7.1 respectively) above what is described as a "building undercroft" with its ground or floor level at RL 2.5 and (ii) the southern section comprising two residential units located on the same floor level (RL 5.5) located above a car parking level at RL 2.5.

Although the two building blocks or sections are physically very closely proximate especially in terms of the constructed pedestrian way (which incorporate the lift well), the only level common to both building blocks or sections is the ground level at RL 2.5 upon which (i) the undercover carparking accommodation is provided under the southern building block or section and (ii) the building undercroft is contained under the northern building block or section.

Because of the building constraints created by the flood liability of the development site, both the carparking level and the undercroft level (being the same level RL 2.5) are not enclosed by external walls of the buildings, the residential floors above both of which, are supported by piers or columns, to enable floodwaters to pass under the buildings.

The question whether the building undercroft immediately below the two floors or levels of residential units in the northern building constitutes a "storey" in my opinion can only be answered one way, namely that it is not a storey because either (i) it is not "a level of which the building consists" (per Samuels JA in Daniel Callaghan) or (ii) it is not "a structural feature of the building" or it is not "a ground floor of the building" (per Glass JA in Daniel Callaghan).

Accordingly, I hold that the proposed development is not "more than two storeys in height" within the meaning of cl 13(2)(b) of SEPP No 5.

For all the foregoing reasons, I would determine the three preliminary questions in the manner that I have earlier held.

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