Are the works permissible?
The respondent's submissions
10Mr Robertson SC, for the council, submits that cl 17(7) provides that a building and a work must not be carried out on land between the FBL and any waterway. Clauses 17(8) and (9) provide exemptions from cl 17(7) and relevantly include the pool extension, timber path, stairs, landscaping and the balustrade. If the purpose of the addition of columns to the boat shed is to support the cantilevered planter boxes used to conceal the existing spa and elevated deck of the boat shed, then they are a use related to a dwelling rather than the boat shed, and hence are not "excluded works" identified in cl 17(10) and acceptable under cl 17(8)(a). The remaining works are prohibited, unless they fall within cl 17(9). Clause 17(9)(b)(i) limits the extent of derogation from this prohibition. If the works can not satisfy this objective test, it is necessary to consider the qualitative tests in the remainder of subclause (9), all of which must be satisfied for the works to be permissible.
11Mr Robertson submits that the interpretation of cl 17(9)(b)(i), that confines the area of physical disturbance, forward of the FBL, to the most limited area will be more consistent with the purpose of the provision than any other interpretation. These controls have been consistently construed to restrict development on the foreshore area so as to preserve, restore or enhance the formerly natural areas below the FBL. Under LEP 2006, even more than its predecessors, a construction that promotes the objectives of removing (or, in the case of an existing dwelling, constraining) development forward of the FBL must be preferred to the one that does not achieve that purpose. There are textual indications that support this construction. First, the word "any" is used in two different senses in cl 17(9)(b)(i) and according to Mr Robertson there is no warrant to suggest, as promoted by Mr Minto, the applicant's town planner, a notional FBL. It is not directed to relocating the FBL, but rather to locate the footprint of the new dwelling or addition by reference to the physical location of the existing dwelling.
12Second, the Court is required to consider whether the use of the word "dwelling" (as distinct from "dwelling house") was employed deliberately to reduce the footprint of the area of foreshore not subject to the prohibition on rebuilding and additions. Mr Robertson submits that "dwelling" is specifically defined, as is "dwelling house". "Dwelling" is therefore a specific defined cubic space, comprising the rooms of an abode, whereas "dwelling house" is the structure in which the dwelling(s) is contained and includes ancillary space such as entertainment areas, gardens and so on. Where a building forms readily into two parts: in this case, the suite of rooms and a large entertainment deck, then this distinction between a dwelling and a dwelling house has work to do. If the roof of the boat shed ever became part of the dwelling house when physical access to it was provided from the original dwelling house, it simply became part of the open space available to the occupants of the dwelling for entertainment purposes. It is not different, conceptually, to any other part of the site to which access can be gained from doors in the dwelling or purposes ancillary to the dwelling house, such as entertaining, viewing the waterway, active or passive recreation etc. This needs to be compared to the applicant's approach, if correct, then the whole of the land, including the expansive hard stand areas between the building and its boundaries, is part of the existing dwelling. Mr Robertson submits that there is no warrant to give the word "dwelling" any extended or wider meaning than an enclosed space used for the purposes of an abode. Consequently, the construction of the word "dwelling" excludes the roof of the boat shed (the open deck) and cannot demarcate the extent of derogation of the FBL.
13Mr Robertson also submits that there is no existing dwelling on the site. The dwelling was demolished, unlawfully in councils opinion, in the course of carrying out "alterations and additions" to the existing dwelling on the land. Reference is made to the planning principle in Edgar Allen Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790 at [52] where it states that the demolition of more than 50% of a structure of an existing dwelling is not an alteration or addition, but either a rebuilding or the erection of a new dwelling. Mr Robertson notes that the applicants architect estimated that the percentage of build form to be demolished and replaced was about 25% of the existing residence however he is instructed that around 95% of the existing building has been demolished. Further support for this approach is found in the decision of Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] 178 LGERA 445 where Biscoe J determined that the word "existing" emphasised that the facilities for a dwelling had to be actual rather than merely potential [31] and [64], be habitable [65] and lawfully constructed [75-85].
The applicant's submissions
14In relation to the existing planning controls, Mr Galasso SC acknowledges that cl 17(7) is relevant however this subclause is not absolute as there are two primary exceptions, firstly cl 17(8) and secondly, cl 17(9). The introductory words to cl 17(8) make it clear that the general proscription identified in cl 17(7) is overridden by cl 17(8) to the extent that it is applicable.
15Mr Galasso notes that on 5 February 1980, BA 80/0643 was approved by the council (the 1980 approval) for "additions to residence" and provides for an addition to the dwelling in the form of an expansion of the living room of the existing dwelling. This approval provided for the removal of the aluminium windows on the eastern side of the existing living room and what was described as a "living extension" was proposed to the east of the living room on to the existing concrete slab, described on the plan as "open deck". The approval essentially permitted the extension of the internal living space of the residence onto an external area (the open deck) by providing an unencumbered connection between the internal living area and the open deck. The current proposal provides no additions, but seeks only to alter the roof by extending it, adding a small balcony and installing a spa on the deck. Given that the floor area or volume of the existing dwelling will not be enlarged, the proposed changes must be deemed as alterations rather than additions. Mr Galasso submits that the council formally established the relationship between the residence and the open deck with the 1980 approval.
16Mr Galasso submits that the effect of the 1980 approval, and adopting a purposive and practical assessment of the resulting built form, was that for the purposes of identifying the extent of the residence, it must not only include the internal spaces of the building, but also the external extension of those internal spaces, including the open deck. Expressed in another way, Mr Galasso submits that even putting aside the boatshed below, there is no sensible conclusion that results in the "dwelling" not including the open deck area as the 1980 approval determined the eastern extent of dwelling, being the eastern edge of the open deck.
17Mr Galasso submits that consent can be granted pursuant to cl 17(9) provided that consideration has been given to the objectives of the clause. As part of the consideration, there must also be satisfaction that any addition to an existing dwelling will not be erected any further forward of the FBL than any existing dwelling on the land. According to Mr Galasso, this must include all component parts of the dwelling, including the deck. Even if the works are classified as additions (and not alterations), they are to be constructed within the existing footprint of the existing dwelling and thereby would not be any further forward of the FBL than any existing dwelling on the land.
18Mr Galasso does not agree with the submissions made by Mr Robertson on the construction of cll 17(8) and (9) for a number of reasons. Firstly, the council, in relation to the 2010 approval, has not chosen to require the removal of any structure forward of the FBL, or forward of the existing dwelling even if the council's more conservative location is adopted.
19Secondly, the strictness of the construction urged by the council is contrary to:
- the meaning of a provision in an environmental planning instrument has to be determined having regard to its context and purpose: ( Project Blue Sky v Australian Broadcasting Authority (1998) 66 NSWLR 379 at [36] - [39]),
- the planning purpose is determined by reference to the language of the instrument considered in context: ( Wilson v State Rail Authority [2010] NSWCA 198 at [12] - [13]),
- the Court must look to the intention of the draft person and avoid the irrational result of a particular construction unless the language of the provisions in question is intractable or where the operation of the provision, read literally, indicates that it could not have been intended by the draft person: ( Lennard v Jessica Estates (2008) 71 NSWLR 306 at [52], and
- where two meanings are open in statutory interpretation it is proper to adopt a meaning that avoids consequences that appear irrational and unjust and produces a fairer and more convenient operation so long as it conforms to be legislative intention: ( Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 at [320]).
20If considered in light of these authorities, Mr Galasso submits that that the council's approach places artificial limitations on the true interpretation of cl 17. A practical and purposive approach to the construction of cl 17 would render, as part of the "dwelling", the deck area. No part of the proposed non excluded works will extend beyond the "dwelling". Mr Galasso rejects the submissions that the 2010 approval did not authorise the works currently being undertaken on site. Even if works associated with the residence, may have been erected without authority (and this is not accepted by the applicant) it is irrelevant to the present question of permissibility.
Findings - the purpose of cl 17
21While I accept the purpose of cl 17 is to address buildings and works between the FBL and the foreshore and that one of the objectives in cl 17(2) is to "restore and revegetate or areas to improve estuarine flora and fauna habitat" (cl 17(2((d)), I do not accept Mr Robertson's submission that the controls have been consistently construed to restrict development on foreshore so as to preserve, restore or enhance the formerly natural areas below the FBL. To adopt this approach would be to largely ignore the exceptions provided firstly by cl 17(8) and secondly, cl 17(9). I agree with Mr Galasso that the introductory words to cl 17(8) make it clear that the general proscription identified in cl 17(7) is overridden by cl 17(8) to the extent that it is applicable. The test of acceptability rests with the assessment required by cl 17(8) and cl 17(9).
Findings - is there an existing dwelling on the land?
22The submissions of Mr Robertson and Mr Galasso focus on what, for the purposes of cl 17(9)(b)(i), constitutes "any existing dwelling on the land". There was no dispute that the alterations and additions to the existing dwelling house removed additional walls during the renovations that were shown on the approved plans as remaining. There was also no dispute that the new walls were located in the position of the original walls that were removed and that the form of the building remained the same as shown on the approved plans.
23On the question of whether there was any existing dwelling on the land to satisfy cl 17(9)(b)(i), I am satisfied that the answer is yes. While the planning principle in Edgar Allen Planning addresses the question of what constitutes alterations and additions in terms of the extent of building demolition, it must be remembered that planning principles are not legally binding and are not a substitute for the proper consideration of the facts and individual circumstances of a particular case. The submissions suggested that the 2010 approval provided for the demolition of some 25% of the fabric of the dwelling house whereas some 95% was removed. There was no specific evidence to support these submissions although I do not accept that it is a critical matter in answering the question of whether there was any existing dwelling on the land Of greater importance, in my view, is that the alterations and additions to the dwelling house were almost completed at the time of the site inspection and notwithstanding the concerns raised by the council during the appeal, no action has been taken by the council to address the alleged non-compliance with the approved plans. In any event, and even if some 95% of the fabric was removed as part of the alterations and additions, it does not necessarily follow that these works would be automatically deemed illegal or that it could reasonably be suggested that the alleged non-compliance with the approved plans could somehow lead to a finding that, for the purposes of cl 17(9)(b)(i), there was not "any existing dwelling on the land".
24Also, in Vic Vellar it was found that for a dwelling to be "existing", the facilities for a dwelling had to be actual rather than merely potential, be habitable and lawfully constructed. Based on the site inspection where the external and internal areas of the residence were inspected, it was clear that the residence was largely completed and there is little, if any doubt in my mind that based on Vic Vellar, there is an existing dwelling on the land. The question of whether the dwelling house has been lawfully constructed has been addressed earlier in the previous paragraph.
Findings - dwelling or dwelling house?
25The principal position of Mr Robertson is that a "dwelling' must be a reference to the cubic volume of the abode on the site, and cannot include the open deck. Mr Galasso maintains that the open deck forms part of the existing dwelling on the land given the 1980 approval and as such approval can be granted, subject to the favourable consideration of cl 17(9)(a) and cl 17(9)(b)(ii) (see Attachment 1) .
26Clause 17(9)(b)(i) provides:
(9) Nothing in subclause (7) or clause 11 prevents consent being granted to the erection of a dwelling, or any addition to an existing dwelling, on land between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed if:
(a) .
(b) the consent authority is satisfied that:
(i) the new dwelling or addition will not be erected any further forward of the foreshore building line than any existing dwelling on the land, and
27The Dictionary to LEP 2006 provides the following definition:
dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
dwelling house means a building containing only one dwelling.
28It must be generally accepted that the draft person sought to distinguish between "dwelling" and "dwelling house" as they are separately defined. The difference, in my view, is however relatively subtle. In considering the different definitions, it would seem that a "dwelling" is not so different to a "dwelling house" except that it exists with other dwellings in a single building whereas a "dwelling house" contains only a single dwelling within a building. I am not satisfied that the submission of Mr Robertson that a "dwelling" excludes the use of ancillary matters such as open space, should be accepted, having regard to its context and purpose ( Project Blue Sky) and by reference to the language of the instrument considered in context ( Wilson ), particularly considering the definitions in LEP 2006.
29I accept that there is some support for Mr Robertson's approach if considered against the definition of "residential flat building" which states(with my underlining):
residential flat building means a building containing, 3 or more dwellings but does not include seniors housing, a townhouse or a villa house.
30If considered against this definition, a dwelling could comfortably be seen to be a cubic space if the dwelling takes the form of an apartment or unit in a building that accommodates three or more dwellings. This configuration could potentially exclude ancillary spaces such as entertainment areas, gardens etc. The same degree of comfort however could not be achieved if considered against the definitions of "townhouse" and "villa house" that state (with my underlining):
townhouse means a dwelling within a two-storey building, on a lot of land containing 3 or more dwellings, where each dwelling has open space at finished ground level for the exclusive use of the occupants of that dwelling.
villa house means a single storey dwelling on a lot of land containing 3 or more dwellings, where each dwelling has an individual entrance and there is open space at ground level for the exclusive use of the occupants of the dwelling.
31These definitions refer to a dwelling but specifically include those ancillary matters seen by Mr Robertson as being excluded from a dwelling, such as open space at ground level for the exclusive use of the occupants of the dwelling. I have taken the term "open space at finished ground level for the exclusive use of the occupants of the dwelling " or "open space at ground level for the exclusive use of the occupants of the dwelling " to mean an area outside the defined cubic space of the dwelling.
32Similarly, little practical support for Mr Robertson's submission is gained when considering the definitions of "group home" and the consequent definitions of "permanent group home" and "transitional group home" which state (with my underlining):
group home means a dwelling that is a permanent group home or a transitional group home.
permanent group home means a dwelling :
(a) used to provide a household environment for disabled persons or socially disadvantaged persons, whether those persons are related or not, and
(b) occupied by the persons referred to in paragraph (a) as a single household, with or without paid or unpaid supervision or care and either with or without payment for board and lodging being required,
but does not include a building to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies or a transitional group home.
transitional group home means a dwelling :
(a) used to provide temporary accommodation, for the purposes of relief or rehabilitation, for disabled persons or socially disadvantaged persons, whether those persons are related or not, and
(b) occupied by the persons referred to in paragraph (a) as a single household, either with or without paid or unpaid supervision or care and either with or without payment for board and lodging being required,
but does not include a building to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies.
33If these definitions are considered in the manner suggested by Mr Robertson, then these forms of development may only be carried out within the cubic space of a building with no use of ancillary features such as open space. It is difficult to imagine that this is a planning outcome anticipated for a disadvantaged group of society by restricting their use of a home to the cubic space of the home and restricting access to external open space.
34The acceptance of the submissions by Mr Robertson would also result in a curious situation where a permissible use within Zone 2 - Environmental Housing (Scenic Quality), that it is a dwelling house, would not be subject to the provisions of cll 17(8) and (9).
35The inconsistent approach to the use of the "dwelling" in LEP 2006 is also consistent with the submission of Mr Galasso that the word "dwelling" is used in a generic sense in cll 36(6) and 37(c).
36Some weight must also be given to the 1980 approval that provided direct access from the residence to the open deck with the clear intention to provide an open recreation area to be used in conjunction with the existing residence.
37I am satisfied that the use of the word "dwelling" is used inconsistently within the context of LEP 2006 and consequently, the comments in Cooper Brookes are valid where it states that if there are two meanings that are open in statutory interpretation, it is proper to adopt a meaning that avoids consequences that appear irrational and unjust and produces the fairer and more convenient response so long as it conforms to the legislative intent. Similarly, the comments in Lennard, are also valid where it states that the Court must look to the intention of the draftsperson and avoid the irrational result of a particular construction, unless the language of the provision in question is intractable or where the operation of the provision, read literally, indicates that it could not have been intended by the drafts person.
38I am satisfied that to adopt the council's narrow approach to the interpretation of the definition of "dwelling", in this case, would be unreasonable, "irrational and unjust" and support an "irrational result" in that it would preclude the practical and sensible use of the flexibility available in cll 17(8) and (9) for the proposed development.
39For these reasons, I am satisfied that the words "existing dwelling" includes the open deck.