G W Rothwell & Associates v North Sydney Council

SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT: D A Parry (barrister)

SOLICITORS: Mallesons Stephen Jaques

IN THE LAND AND Matter No. 10017 of 2000 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 15 June 2000 G W Rothwell & Associates Applicant v North Sydney Council Respondent

REASONS FOR JUDGMENT

1. This is a separate determination of questions of law in an appeal brought by the applicant under section 97 of the Environmental Planning and Assessment 1979 ("the EP&A Act") against the deemed refusal of a development application for a residential flat building. (The determination of any question separately from any other question is permitted by Part 31, Rule 2 of the Supreme Court Rules as they apply in this court: see the Land and Environment Court Rules 1996 , Part 6, Rule 1(1)).

2. The respondent, North Sydney Council ("the council"), has raised the following three questions for separate determination:

Question 1: On its proper construction does clause 14A(1) of North Sydney Local Environmental Plan 1989 prohibit development for the purposes of a residential flat building on land in Zone 2(c) if part only of a principal building on adjoining land is less than three storeys measured vertically above natural ground level? Question 2: Is any principal building on adjoining land to the proposed development site less than three storeys measured vertically above any point at natural ground level? Question 3: Is the proposed development prohibited? 3. During the hearing the applicant raised two additional questions: Question 4: Is clause 14A(1)(a) of North Sydney Local Environmental Plan 1989 inconsistent with the provisions of Sydney Regional Environmental Plan No. 23-Sydney and Middle Harbours-Zone No. W1-General Waterways ( "the SREP 23") to the extent that it operates to prohibit a use on the land the subject of these proceedings otherwise permitted under Sydney Regional Environmental Plan No. 23. Question 5: If the answer to Question 4 is in the affirmative, is the use of the land for the purposes of a residential flat building permissible with consent? I make the observation that Question 2, raised by the council, is a question of fact rather than a question of law, but having been raised and argued, I am prepared to determine it.

Questions 1, 2 and 3: Is the development prohibited by clause 14(1)(A)? 4. The relevant facts may be briefly described. The applicant has made a development application for the erection of a nine (9) level residential flat building to contain fifty nine (59) apartments plus four (4) basement levels containing sixty four (64) car parking spaces. The development site is within Zone No. 2(c) under the North Sydney Local Environmental Plan 1989 ("the LEP"). Under the zoning table to Clause 9 of the LEP residential flat buildings are permissible with development consent in Zone No. 2(c). Clause 14A of the LEP relevantly provides:

(1) A residential flat building shall not be erected on land in Zone No. 2(c) if: (a) any principal building on adjoining land is less than three (3) storeys measured vertically above any point at natural ground level; or ... (2) A residential flat building shall not be erected on land in Zone No. 2(c) if the building has more that three (3) storeys measured vertically above any point at natural ground level. 5. The word "storey" is defined in LEP as follows:

..."storey" means any floor or part of a floor regardless of use but does not include: (a) an attic contained wholly within the roof space where the roof has a maximum pitch of 36 degrees: or (b) a parking area contained wholly within a basement which is below the natural ground level;… 6. The word " floor" is defined in the LEP as follows:

..."floor" means that space within a building which is situated between one floor level and the floor next above or if there is no floor above, the ceiling or roof above;… 7. On adjoining land to the development site there is a part two storeys and part three storeys building know as Wenona Junior School. The council contends that the prohibition in clause 14A(1)(a) operates unless the whole of the principal building on the adjoining land, without exception, is less than three storeys. The applicant contends that the prohibition does not operate where any significant part of the principal building is not less than three storeys, and in this case significant parts of the Wenona Junior School building are of three storeys. All other adjoining land to the development site contains a principal building of more than three storeys.

The plans of the Wenona Junior School were tendered, together with a surveyor's plan showing the levels of various parts of the school building and ground levels.

The school building is erected on land which has a slope from the front to the rear, so that it varies in height above natural ground level. The building runs length wise down the fall. The front section of the building, which occupies about 30 percent of its length, is part one storey and part two storeys when measured vertically above any point at natural ground level.

The middle section of the school building, which occupies the next 30 percent (approximately) of its length, is three storeys when measured vertically above any point at natural ground level. The final 40 percent of the length of the building (approximately) comprises an indoor swimming pool, which, apart from a small plant room under part of the lower end and the class room above part of the upper end, must be classified as one storey.

Mr D A Parry, appearing for the council, submits that sub-clause 14A(1)(a) of the LEP is to be construed according to the natural and ordinary meaning of the words which are used. So construed, all principal buildings on adjoining land must have at least three storeys at any point within the " footprint " before a residential flat building may be erected on the development site. Any minor or ancillary buildings such as a detached garage or shed is excluded from the provision by term " principal building ". A purposive interpretation of clause 14A arrives at the same result. Aim (a) of North Sydney Local Environmental Plan 1989 (Amendment No.1), which inserted clause 14A into the LEP, states that an aim of the sub-clause is: " to introduce height controls for land in Zone No. 2(c) under North Sydney Local Environmental Plan 1989 ." The evident purpose is to prevent inconsistencies in the height of buildings in Zone No. 2(c), as shown by sub-clause (2) of clause 14A which limits the height of a residential flat building to not more than three storeys measured vertically above any point at natural ground level. In the present case the majority of the " footprint " of the Wenona Junior School building has less than three storeys. As to the applicant's contention that the prohibition does not operate where any significant part of the principal building is not less than three storeys, there is no basis on either a literal or purposive approach to insert the words " significant part of the " before the words " principal building ". The applicant's interpretation will defeat the purpose of clause 14A and lead to imprecision, confusion and uncertainty. Even if it were permissible to insert the words " significant part of the " before the words " principal building ", the fact that the sub-clause is prohibitory would mean that it would prohibit a proposed residential flat building where any significant part of the adjoining principal building is less than three storeys in height: and a significant part of Wenona Junior School building is less than three storeys in height.

The submissions of Mr M H Tobais QC, who (with Ms S A Duggan) appears for the respondent, are as follows. The context of sub-clause 14A(1), including the objectives of the LEP, the specific objectives of the residential zones generally and of Zone No. 2(c) in particular, the location of clause 14A in Division 2 of the LEP which deals with controls in residential areas, the objects in the EP&A Act (section 5), the requirement that environmental planning instruments must be interpreted in a way which best meets the stated objectives therein (section 25(3) EP&A Act) and the content of environmental planning instruments (section 26(1) EP&A Act) all suggest that the aim or objective of sub clause 14A(1) is: (1) to notify the public as to what is or is not permissible on land within Zone No. 2(c); (2) to limit the bulk and style of a building to that which is compatible on adjoining land; and (3) to protect the existing residential amenity of the locality. For example, a stated objective on Zone No.2(c) is: " to permit a form of development which is compatible with the scale and character of the existing locality". Subclause 14A(1) is simply the tool for implementing the purpose and it is not the purpose itself.

Mr Tobias QC submits that if the sub-clause is to be read literally, it would result in an absurdity or an injustice and the objects in the sub-clause would be frustrated. He gave a number of examples. It is convenient to mention two of them. The objects would be frustrated if the adjoining land is occupied by an eight storey building with an attached single storey garage or portico; or if the adjoining land is occupied by a three storey building at all boundaries but which because of a topographic anomaly is only two storeys at a point in centre of a building, so that not all of the building is not less than three storeys when measured at any point.

Mr Tobias further submits that the second and third limbs of the aims or objectives of the clause are satisfied by the presentation of the Wenona Junior School building and its apparent or perceived size and configuration. This involves a visual assessment - not a technical determination. The question is to be asked: does a particular building present as a three storey building? He submitted that it is sufficient for the prohibition not to apply if a significant part of the building is of three storeys, as it is the case with the Wenona Junior School building. In the alternative, he submitted that the part of the building comprising the indoor swimming pool presents as a three storey building because of the unusually high floor to ceiling height. If the words of the sub-clause were to be applied literally, the purpose of the clause would be frustrated.

Both parties rely upon the well known principals of statutory construction explained in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 . The starting point is, of course, with the words used in the statutory provision in question, as explained by Gibbs CJ (at 304):

It is only by considering the meaning of the words used by legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: ... 16. Gibbs CJ goes on to say, that no part of a statute can be considered in isolation from its context; and there are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsmen has made a mistake. The judgment then continues (at 305):

However if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. 17. Mason and Wilson JJ said (at 320):

The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction. 18. In referring to the propriety of departing from the literal interpretation, Mason and Wilson JJ said (at 321):

It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended. 19. In applying these principles to the present case one must first look to the language of sub-clause 14A(1)(a): a residential flat building shall not be erected on land in the relevant zone if any principal building on adjoining land is less than three storeys measured vertically above any point at natural ground level. The language could not be clearer. The natural and ordinary meaning of the words used means that the all principal buildings on adjoining land must be at least three storeys at all points within their " footprint s" before a residential flat building may be erected on the development site. The words " above any point " are unavoidably emphatic. To read down the requirement so that only a significant part of the building must be three storeys would be to disregard the clear wording of the clause. It is clear that by the use of such words it is intended thereby to impose severe restrictions on the erection of residential flat buildings. The plain language of the clause would clearly prevent the erection of a residential flat building on the development site in this case. As stated above, minor or ancillary buildings such as garages or sheds are excluded from the provision by the use of the term " principal building ".

I should turn now to look at the position in a light of Mr Tobias' submission that one must have regard to the aims or objects of the LEP and to the three fold aims or objects of sub clause of 14A(1) in particular, as noted in paragraph 12 above. The sub-clause is promoting the preservation of low rise development where low rise development already exists. The sub-clause proceeds on the premise that low rise development is preferable in Zone No. 2(c) unless the surrounding buildings are such as to make a prohibition on residential flat buildings completely contrary to the scale and character of the immediate area. The sub-clause provides that where the existing scale and character of the surrounding development is other than totally high rise, then the existing non-high rise character is to be decisively preserved.

I am prepared to assume, for the sake of argument, that the sub-clause applies so as to permit a residential flat building where a principal building on adjoining land has only an insubstantial or an insignificant part of it which is less than three storeys. Such an approach would avoid the kind of absurdities suggested by Mr Tobais if there is to be a literal application of the sub-clause. Such an approach would not appear to defeat the aims or objects of the sub-clause. It would follow that any significant part of the building on adjoining land which has less than three storeys would trigger the prohibition. That is to say, I am inclined to accept the submission of Mr Parry that if it were permissible to insert the words " significant part of " before the words " principal building " in the sub-clause it would mean that the sub-clause would prohibit a proposed residential flat building where any significant part of the adjoining principal building is less than three storeys in height.

As noted in paragraphs 9 and 10 above, some seventy percent of the length of the Wenona Junior School building has less than three storeys measured vertically above any point at natural ground level. Even if one were to regard the indoor swimming pool, which is one storey, as notionally presenting as a two storey building, it would still mean that some seventy percent of the length of the building has less than three storeys. It is only the middle thirty percent of the length of the Wenona Junior School building which has three storeys. It would be stretching both the language and the intent of sub-clause 14A(1)(a) to describe the building otherwise than one of less than three storeys. That is to say, if one wants to apply the sub-clause in a flexible way so as to satisfy the aims and objectives which it seeks to achieve, the prohibition would nevertheless apply.

My conclusion is that whether one applies sub-clause 14A(1)(a) according to its unambiguous language, or according to the legislative intent, one arrives at the same conclusion. Sub-clause 14A(1)(a) operates as a prohibition to the proposed development in this case.

Questions 4 and 5: Inconsistency between the regional environmental plan and the local environmental plan?

Sydney Regional Environmental Plan No. 23-Sydney and Middle Harbours ("the REP") applies to the development site. The development site is within Zone No. W1-General Waterways under the REP. The zoning table to clause 10 of the REP nominates the purposes for which development may be carried out without development consent, development which may be carried out only with development consent and development which is prohibited. A residential flat building is an innominate use in Zone No. W1. It is thus a permissible use with development consent under the zoning table in the REP.

The submission of Mr Tobias as I understood it is as follows: sub-clause 14A(1) is not a development standard but a prohibition; the prohibition of residential flat buildings within Zone No. 2(c) under the LEP other than in exceptional circumstances is inconsistent with the permissibility of residential flat buildings with development consent within Zone No. W1 under REP; to the extent of that inconsistency the REP will prevail; and the consequence of the inconsistency is that a residential flat building is permissible on the subject land with development consent. The submission concedes that the position might have been different if the sub-clause was framed as a development standard and not as a prohibition.

The submission flows from clause 4(1) of the REP which provides:

In the event of an inconsistency between this plan and any other environmental planning instrument (other than a State environmental planning policy), whether made before, on or after the date on which this plan takes effect and which applies to the land to which this plan applies, this plan shall, to the extent of the inconsistency, prevail. 27. Mr Tobias relies upon the meaning of " inconsistency " preferred by Kirby P in Coffs Harbour Environment Centre v The Minister for Planning (1994) 84 LGERA 324 . In that case the court was concerned, inter alia, with the question of whether there was any inconsistency between a LEP and a REP. Kirby P said ( at 331):

The term "inconsistency"... is to be construed having regard to the ordinary meaning of the word. ...Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is "want of consistency or congruity"; lack of accordance or harmony" or "incompatibility, contrariety, or opposition" with another environmental planning instrument. 28. There are other statements of general principle which apply. There is a general reluctance by the courts to find that there is an inconsistency between two statutory provisions if both provisions can be given effect. For example, in Hume Steel Limited v Attorney-General for Victoria (1927) 39 CLR 455, Higgins J, referring to the rules for resolving an inconsistency within an instrument said ( at 465):

But such rules are only to be applied as a matter of last resort, when the words used cannot be fairly reconciled; and it is our duty to find whether the words are not capable of reconciliation, so as to give to each set of words full and equal weight, and yet give a consistent effect to the instrument as a whole . 29. In Butler v Attorney-General for Victoria (1961) 106 CLR 268, Windeyer J, although dissenting in the result, in a case involving an inconsistency between two statutes, adopted (at 290) the following statement of principle from Maxwell on the Interpretation of Statutes :

It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the Statute-book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention. 30. In the same case Windeyer J adopted (at 290-291) what was said by Lord Selborne L.C. in Seward v "Vera Cruz" (1884) 10 AC 59:

Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. 31. In considering the submissions of Mr Tobias QC in the light of the principles to which I have referred, I am required to have regard to sub-clause 10(3) of the REP, which governs the operation of the zoning table for the various zones. That sub-clause is as follows: (3) Except as otherwise provided by this plan, the consent authority shall not grant consent to an application to carry out development on land to which this plan applies unless it is of the opinion that the carrying out of the development is generally consistent with the aims and objectives of this plan and the zone within which the development is proposed to be carried out. 32. Sub-clause 10(3) thus requires in the case of every development which is permissible with development consent within any particular zone, the formation of an opinion that the carrying out of the development is generally consistent with the aims and objectives of both the REP and of the zone within which the development is proposed to be carried out.

33. The general aims of the REP are set out in sub-clause 2(1). That sub-clause lists ten general aims. Nine of the ten general aims are related to the use of the waterway, islands and foreshores of Sydney and Middle Harbours. One aim in paragraph 2(1)(e) is:

(e) to recognise, protect and enhance the natural, scenic, environmental, cultural and heritage qualities of the land to which this plan applies in future planning and development control;…

(This is not dissimilar to the general aims of the LEP clause 2 (1)(d),(m))

34. The specific aims of the REP are set out in sub-clause 2(2) and are again directed mainly to the use of the harbours and the foreshores. Paragraph (f) is not so limited and refers to visual environment. It provides as follows:

(f) in relation to the visual environment: (i) to protect and enhance the landscape and special scenic qualities of the Harbours: and (ii) to ensure that adequate consideration is given to the visual impact of development; and (iii) to preserve the natural foreshores of the Harbours and to ensure development does not detract from their natural character; (This is not dissimilar to one of the general aims and objectives of the LEP clause 2(d)).

35. Sub-clause 10(3) then requires that attention is to be turned to the aims and objectives of Zone No. W1. There are as follows:

(3) The objective of this zone is to permit waterway activities and facilities and land/water interface development which:

(a) maintains or enhances important, natural and visual attributes of the harbours; and (b) is compatible with the existing or planned future character of the waterway and adjoining foreshore;… 36. The reference to " waterway " activities requires recourse to the definition of " waterway " the in the REP: " waterway" means those parts of Sydney Harbour and Middle Harbour to which this plan applies within Zone N. W1, W3, W4 or W5. (Clause 5). 37. The reference in the objectives of the zone to " land/water interface development " also requires recourse to the definition of that term in the REP:

" land/water interface development" means development listed in Schedule 2. (Clause 5). Schedule 2 contains a list of developments all of which are related to marine activities, whether they are carried out wholly or partly in the waterway or adjacent thereto.

It seems clear, therefore, that the objective of Zone No. W1 in the REP is to allow with development consent certain waterway activities and land/water interface developments, which by definition must be either wholly or partly in the harbours or adjacent thereto, and which might be otherwise prohibited under the LEP.

The question in this case is whether the prohibition in clause 14A(1) of the LEP against the erection of residential flat buildings (except in certain circumstances) is inconsistent with the above mentioned provisions of the REP. In my opinion the prohibition on residential flat buildings is not inconsistent with the aim of recognising, protecting and enhancing the natural, scenic, environmental, cultural and heritage qualities of the land. Neither, in my opinion, is a prohibition on a residential flat buildings inconsistent with the specific aims of the protection and enhancement of the landscape and special scenic qualities of the Harbours; neither is it inconsistent with the giving of adequate consideration to the visual impact of the development; neither it is inconsistent with the preservation of the natural foreshores of the Harbours or likely to detract from their natural character.

It is also my opinion that a prohibition on residential flat buildings is not inconsistent with the development of " waterway" activities and facilities, neither is it inconsistent with the development of " land/water interface development " which " maintains and enhances important, natural and visual attributes of the Harbours " and which " is compatible with the existing or planned future character of the waterway and adjoining foreshores ".

That is to say, a prohibition on residential flat buildings in clause 14A(1) of the LEP does not give rise to any " want of consistency or congruity " or " lack of accordance or harmony ", or " incompatibility, contrariety, or opposition " with either the general aims of the REP, the specific aims of the REP or the specific objectives of Zone No. W1 under the REP. There being no disharmony between the prohibition under the LEP on the one hand and the relevant aims and objectives of the REP on the other hand, there is then no inconsistency between them. On the contrary, sub-clause 14A(1) of the LEP is complementary to the W1 zoning of the land under REP.

Finally, I should note that Mr Tobias QC submitted that since a residential flat building is an innominate use - " any purpose" - which is under item 3 of the zoning table for Zone No. W1 is permissible with development consent, then the objectives cannot be used to construe those words. I do not agree. Sub-clause 10(3) demands in every case consideration of and consistency with the aims and objectives of the REP and the aims and objectives of the zone. There being no inconsistency between those aims and objectives on the one hand and the prohibition in sub-clause 14A(1) of the LEP on the other hand, then the latter provision is free to operate according to its tenor. Questions 4 and 5 raised by the applicant must be answered in the negative.

Question 1: On its proper construction does clause 14A(1) of North Sydney Local Environmental Plan 1989 prohibit development for the purposes of a residential flat building on land in Zone 2(c) if part only of a principal building on adjoining land is less than three storeys measured vertically above natural ground level? Answer: Yes - on the facts and circumstances of the present case.

Question 2: Is any principal building on adjoining land to the proposed development site less than three storey measured vertically above any point at natural ground level? Answer: Yes

Question 3: Is the proposed development prohibited? Answer: Yes.

Question 4: Is clause 14A(1)(a) of North Sydney Local Environmental Plan 1989 inconsistent with the provisions Sydney Regional Environmental Plan No. 23-Sydney and Middle Harbours--zone W1-General Waterways ( "the SREP 23") to the extent that is operates to prohibit a use on the land the subject of these proceedings otherwise permitted under Sydney Regional Environmental Plan No. 23.

Question 5: If the answer to question 1 is in the affirmative, is the use of the land for the purposes of a residential flat building permissible with consent?

Answer: It is not necessary to answer, but in any event the answer is no.

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