[1981] HCA 26
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
Source
Original judgment source is linked above.
Catchwords
[1981] HCA 26
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
Judgment (5 paragraphs)
[1]
The applicant's submissions on the meaning of "the road frontage"
Ms Jiang submits that, read in context, "the road frontage" is the existence of, and lineal extent of, road abutting the lot.
Mr Staunton, counsel for Ms Jiang, submits that understanding a meaning of a phrase cannot be ascertained by looking up the dictionary definition of each word of a compound expression. Instead, he submits that you do not need a dictionary for the expression "the road frontage" because its natural and ordinary meaning is clear. He submits, on behalf of Ms Jiang, that the natural and ordinary meaning of the expression within cl 4.1B is concerned with identifying a lot that has a boundary abutting a road, and ensuring that the lineal extent of that boundary is at least 20m.
Ms Jiang submits that the wording of the expression within cl 4.1B is clearly referable to the lot, and not to the development. That is, "the road frontage" is a specific attribute of a lot of land. Ms Jiang says that this is the same way it is used in cl 4.1A(1)(b). This is contrast to the expression in cl 4.3(1)(a) to "street frontages of development", in cl 4.3(1)(e) to "road frontages along road corridors", in cl 4.3A(2) to "dwelling that does not have a road frontage" and in cl 6.13(4)(f)(vi) to "street frontage heights", all of which Ms Jiang submits are frontages that are referable to the development rather than to the lot. Ms Jiang submits that the drafters have been careful in the instrument to distinguish between the road frontage of a lot and the road frontage of the development. Mr Staunton submits, on behalf of Ms Jiang, that the interpretation adopted by the Council is that "the road frontage" in cl 4.1B is referable to the development. Mr Staunton says that this is contrary to the text of cl 4.1B(2), which is clearly referable to the lot. He submits that Jenny-Lynn Properties Pty Limited v Rockdale City Council and Oreison Pty Limited v Hurstville City Council can be distinguished from the present clause for the same reason, as they concern the interpretation of a clause in which "frontage" is referable to the development. In circumstances where cl 4.1B concerns the road frontage of a lot, he submits for Ms Jiang that the subject lot complies with the road frontage to Lane Cove Road.
Mr Staunton also submits for Ms Jiang that, when having regard to the context of the words "the road frontage" within cl 4.1B, the clause is beneficial and facultative. This is because it allows an increase in density if the lot meets certain criteria. Accordingly, Ms Jiang submits that its words ought to be construed so as to give "the widest interpretation which its language will permit", consistent with the comments by Jagot J in Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 at [9]. As such, the words "the road frontage" should be given their widest meaning, and shouldn't be confined in any way.
Further, Mr Staunton submits for Ms Jiang that there is nothing in the wording of the clause that restricts the words "the road frontage" in the manner contended by the Council. Mr Staunton says that the interpretation that is pleaded by the Council requires words to be added to the clause, such as the word "primary", "effective" or "front" before the words "road frontage", or by adding some other words that require consideration of the attributes of the development on the site. Ms Jiang submits that this would depart from the ordinary and plain meaning of the text, which does not limit the words "the road frontage" in any way. In support, Mr Staunton refers to the decision of Pain J in Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) 241 LGERA 133; [2019] NSWLEC 171, in which she recites the principles of statutory interpretation, notes the emphasis "on the importance of the words of the statute" (at [52]) and states that an "extension of that emphasis is that additional words should not lightly be implied in legislation" (at [53]).
Finally, Ms Jiang submits that her interpretation of cl 4.1B is consistent with the purpose of the clause. The objective of cl 4.1B is to "to achieve planned residential density in certain zones", and its meaning was considered by the Court in Clearcut as an objective that is "explanatory of the outcome that is achieved by the development standards described in cl 4.1B(2)" (at [46]). In particular, at [47], I found:
"As such, in this context, the words "planned residential density" refer to the desired size and number of residential uses within a given area and consequentially, across the zone. It is apparent, therefore, that by fixing minimum road frontage widths and lot sizes, the clause operates to "achieve planned residential density"."
Ms Jiang submits that it would be contrary to the purpose of cl 4.1B to disqualify the site on the basis of one of the road frontages not meeting the development standard, when it meets the minimum site area and has a second road frontage that is compliant. Mr Staunton submits that the interpretation given by Ms Jiang gives effect to the purpose of the provision, and relies on s 33 of the Interpretation Act 1987, which provides:
33 Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
[2]
The meaning of "the road frontage"
I accept the position of Ms Jiang that the words "the road frontage", within the context of cl 4.1B(2)(b), is the existence of, and lineal extent of, road abutting the lot. It is the lineal extent of any boundary of a site that is alongside the road, regardless of the orientation of the building's frontage or façade. For the reasons that follow, I accept and adopt all of the submissions made on behalf of Ms Jiang concerning the proper interpretation of the words "the road frontage".
Firstly, I accept that the words "the road frontage" in cl 4.1B, followed by the words "of the lot", are referable to an attribute of the lot itself. That attribute is the existence of, and lineal extent of, road abutting the lot, regardless of the direction the building faces or the orientation of the lot. There is no reference in cl 4.1B(2) to any aspect of the development or the direction that the lot faces.
Secondly, as stated by Pain J in Central Coast Council v 40 Gindurra Road Somersby, where "words are plain and unambiguous they should be given their ordinary and grammatical meaning". The ordinary meaning of "the road frontage" is that which I have accepted. I do not accept the Council's submission that the word "frontage" in this context can mean the front of the lot, based on the subdivision pattern or orientation of the building. The ordinary use of the word "frontage", within the context of a road frontage, can be clearly seen in the use of the word "frontage" by the Council in its Statement of Facts and Contentions, as follows:
"The site is irregular shaped with a site area of 638.5m2 and consists of dual frontages to Lavarack Street and Lane Cove Road.
The dimensions of the site include a frontage to Lavarack Street equal to 14.337 metres in width and a splayed frontage to Lane Cove Road of 20.32 metres."
I do not accept that this was "loose terminology" or "non-fastidious drafting" as submitted by Dr Berveling. Instead, it is replicated throughout the Council's assessment report and shows the ordinary use of the word:
"The subject site is irregular shaped has a dual frontages to Lavarack Street (14.337 metres) and Lane Cove Road (20.32 metres)."
"The proposal has been designed to present to Lavarack Street but seeks to rely upon the frontage width to Lane Cove Road."
"Properties on the eastern side of Lavarack Street contain dual frontages with Lane Cove Road being the rear of the properties."
"The subject site consisted of two (2) road frontages to Lane Cove Road (20.32 metres) and a noncompliant frontage of 14.337m metres to Lavarack Street."
"The subject site has a frontage to Lane Cove Road which is a classified road and is subject to consideration pursuant to Clause 101 and 102 of the SEPP."
That this is the ordinary meaning of "frontage" is supported by the decision of Pearlman J in Langford v Copmanhurst Shire Council (1994) 82 LGERA 262; [1994] NSWLEC 38, in which Pearlman J stated:
"As the dictionary meaning demonstrates, "frontage" is a word referring to a piece or parcel of land which has as its characteristic the fact that it abuts on a river or a stretch of water or a road. It is not the right-of-way itself that is the frontage of lot 30; it is that part of the land comprised in lot 30 which has the characteristic of abutting on a road."
Further, in the decision of the Court of Appeal in McGinn v Ashfield Council [2012] NSWCA 238, the Court rejected a submission that a dwelling that had characteristics that showed it presented to a particular street did not have frontage to a particular lane (see Gzell J at [45]-[51]).
The difficulty of using the dictionary definition of "frontage" to understand the expression "the road frontage" in the manner relied upon by the Council is that the word "frontage" is usually accompanied by an adjunct, and if not, the adjunct "road" is assumed. When used in the expression "road frontage", the word "frontage" concerns the front of a road. Similarly, when used in the expression "river frontage", the word "frontage" concerns the river front. A lot that has a road frontage, therefore, has the characteristic that it has a length of its boundary abutting a road. The orientation of the building's frontage or façade, and the subdivision pattern of the street, are irrelevant to determining if a lot has road frontage.
Thirdly, this interpretation is supported by the context of the term within the clause. The clause concerns the features of the lot, which if met, allow development consent to be granted "for development on a lot" for the purpose of a dual occupancy or multi-dwelling housing. The words in cl 4.1B(2) are clearly directed to the lot, and to ensuring that the lot has the necessary attributes. I accept the submission of Ms Jiang that the Council's interpretation would require inserting additional words into the clause to identify which frontage must be "equal to or greater than 20 metres". I accept her submission that where the ordinary meaning is clear, additional words should not be implied.
Fourthly, I do not accept that the use of the words "the road frontage" means that both road frontages have to comply with the requirement to be "equal to or greater than 20m". Given that "the road frontage" is the existence of, and lineal extent of, road abutting the lot, it is sufficient if one of two road frontages meet the distance requirement. This application of the clause is consistent with both the purpose of the clause, and the interpretation of the clause as beneficial and facultative. The objective of the clause, which was determined in Clearcut to be explanatory of the outcome that is achieved by the development standards described in cl 4.1B(2) (Clearcut at [46]), is phrased in a manner that is permissive, "to achieve planned residential density". Further, the chapeau to those development standards is phrased permissively, by stating "Development consent may be granted for development on a lot…if…". The explicit restraint on granting a development consent in the event of non-compliance is not contained in the clause, but instead contained with the generic clause, cl 4.6(3). This stands in contrast to the development standards in cll 4.3, 4.4 and 4.5A, which are all drafted to preclude the grant of consent if there is a breach of the standard. As such, I consider that cl 4.1B is facultative and concerned with ensuring that the lot has the attributes described in cl 4.1B(2) to enable higher density on that lot, and the words "the road frontage" should be given their widest meaning such that having one road frontage that is equal to or greater than 20 metres is sufficient to satisfy cl 4.1B(2)(b).
There are two reasons why the interpretation of cl 4.1B(2) is clearly distinguishable from the clause considered by the Court in Jenny-Lynn Properties Pty Limited v Rockdale City Council and Oreison Pty Limited v Hurstville City Council. The first reason is that in those appeals, the relevant clause concerned "site frontage" rather than "road frontage". The second reason is that the relevant clause required the site frontage to be measured "at the building line", which is referable to the development "at the building line". In contrast, cl 4.1B(2)(b) does not contain any additional words that make the measurement of "the road frontage" referable to the development.
Having accepted that "the road frontage of the lot" in cl 4.1B(2)(b) is the existence of, and lineal extent of, road abutting the lot, I accept that the requirement of cl 4.1B(2)(b) is satisfied if one of the two road frontages meet the distance requirement to be "equal to or greater than 20m". As the site has dual frontages, one to Lane Cove Road and the other to Lavarack Street, and the frontage to Lane Cove Road is greater than 20m, I am satisfied that the lot complies with this development standard.
As I have determined that the site complies with the development standards in cl 4.1B(2), there is no basis upon which cl 4.6 is engaged and I am not required to consider the cl 4.6 request furnished by Ms Jiang, which I would have otherwise considered to be well-founded.
[3]
Desired future character
The Council contends that the proposed development is incompatible with the desired future character of the low density residential areas, as the desired future character is expressed in the RDCP 2014 as one that has a "limited number of dual occupancy (attached) buildings, and these buildings look similar to detached dwellings". The Council relies on Part 3.3, Section 2.1 of the RDCP 2014, which requires at (a) that "Development is to be consistent with the desired future character of the low density residential areas."
The Council contends that permitting this form of development will erode the low density character of the area, which is one that has a limited number of dual occupancy buildings. This contention is raised on two grounds. Firstly, the Council says that permitting the development on this site, which it considers to be a site with a width of less than 20m, would "give rise to additional allotments accommodating dual occupancy developments with similar sites". Mr Bazzi's evidence is that it gives a potential rise to additional dual occupancies "not only in the immediate streetscape, but consequently the entirety of the LGA". That is, the Council submits that it will result in opening the "floodgate" for more dual occupancy developments, which would be contrary to the desired future character to limit dual occupancies. Secondly, the Council says that the proposed development will erode the low density character of the area by its appearance as a dual occupancy. It relies on the evidence of Mr Bazzi, who considers that the visual presentation of the building remains to contain elements which of essence present as a dual occupancy, including a centralised driveway which expands to a double width driveway, two split single garages servicing each dwelling, two mailboxes and two pedestrian entries presenting to Lavarack Street. As such, it presents as a dual occupancy which is contrary to the desired future character that requires dual occupancies to appear similar to detached dwellings.
There are three reasons why I do not accept the Council's contention in this regard.
Firstly, the desired future character is set by the built form controls that require dual occupancies to comply with the controls that apply to detached dwellings. This reflects the desired future character element that has dual occupancy (attached) buildings that "look similar to detached dwellings". Save for a minor non-compliance in the northern side boundary set back, the proposed dual occupancy complies with these controls. As such, I accept the evidence of Mr Robinson, as expressed in the cl 4.6 request as follows:
"the proposed development in these circumstances satisfies the applicable provisions in the RDCP at Part 3.3, Section 2.1 as the proposal:
• Has a maximum 2 storey height limit;
• Has a low density with free standing dwellings;
• Has a limited number of dual occupancy (attached) buildings and the buildings look similar to detached dwellings;
• Has dwellings in a landscape setting which includes a clearly defined front garden and backyard;
• Has streetscapes made up of compatible buildings and has garages which are not prominent elements in the streetscape;
• Has mature trees in streets, front gardens and backyards; and
• Has character areas where special features are retained and enhanced.
As such, the development is consistent with the desired future character of the low density residential area."
Further, I accept the evidence of Mr Robinson that the proposed development has been designed to remove some of the symmetry associated with dual occupancies, and therefore appear more like a dwelling house, consistent with the desired future character as expressed in the requirement for dual occupancies to "look similar to detached dwellings".
Secondly, the elements described by Mr Bazzi as being contrary to the desired future character are only those that are characteristic of a dual occupancy. I accept the submission made on behalf of Ms Jiang that these elements are essential to the ordinary use as a dual occupancy. Given dual occupancies are permissible in the zone, it cannot be considered contrary to the desired future character of the area for the dual occupancy to contain some built form elements that are essential for a dual occupancy, particularly when the built form otherwise largely complies with the controls in the RDCP 2014 that apply to dwelling houses.
Thirdly, there is no evidence that the approval of the proposed development will lead to a proliferation of dual occupancies such that there will no longer be a "limited number of dual occupancy (attached) buildings" in the area or within the R2 zone. If there are proposed developments where the lot does not comply with the minimum road frontage of 20m, each proposal will need to be accompanied by a cl 4.6 request and considered on its merits. The proposed development is the fourth dual occupancy in this northern portion of Lavarack Street. I do not accept that this pushes the street to one that has more than a "limited number" of dual occupancies.
For these reasons, I consider that the proposed development satisfies the requirement in Part 3.3, Section 2.1 of the RDCP 2014 at (a), to be consistent with the desired future character of the area.
[4]
The outcome of the appeal
As considered above, I accept that the lot the subject of the proposed development complies with the development standards contained in cl 4.1B(2) of the RLEP 2014 and that the proposed development is consistent with the desired future character of the area. I am also satisfied that the proposed development is consistent with the objectives of the zone, including the objective to "'provide for the housing needs of the community within a low density residential environment", as it provides a form of housing that is consistent with the character of the low density residential area.
Given that the other planning controls of the RLEP 2014 and RDCP 2014 are met and there are no other contentions raised by the Council, there is no reason to refuse the development application and it is granted accordingly, subject to the conditions of consent as agreed between the parties.
The Court orders that:
1. The appeal is upheld.
2. Development consent is granted for the demolition of existing structures, tree removal, the construction of a 2-storey dual occupancy (attached) and front fence, and the strata subdivision of the dual occupancy, at 53 Lavarack Street, Ryde, subject to the conditions in Annexure A.
3. Exhibits 3 and 4 are returned.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 August 2020
Parties
Applicant/Plaintiff:
Jiang
Respondent/Defendant:
City of Ryde Council
Cases Cited (15)
The road frontage development standard
The question of whether the site complies with cl 4.1B(2)(b) of the RLEP 2014 depends upon the meaning of "the road frontage of the lot". Whereas Ms Jiang's position is that the site meets the required minimum road frontage of 20m by its Lane Cove Road frontage, the Council considers that it is required to meet that width at the Lavarack Street frontage.
The words "the road frontage" are not a defined term in the RLEP 2014 or in the EPA Act, under which the RLEP 2014 was made. As a result, the Court is required to give effect to the natural and ordinary meaning of the words (see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26)
The word "frontage" can be found in the Macquarie Dictionary (3rd edition), and is defined as follows:
"noun 1. the front of a building or plot of land. 2. the lineal extent of this front. 3. the direction it faces. 4. Land abutting on a river, street, etc.: water frontage; river frontage. 5. the space lying between a building and the street, etc."
It is also defined in the Shorter Oxford English Dictionary on Historical Principles (3rd edition), as follows:
"1. Land which abuts on a river or piece of water, or on a road. 2. Extent of front 1844. 3. The front face or part of a building. Also collect. 1861. 4. The action of fronting in a certain direction; exposure, outlook 1859."
However, the phrase "the road frontage" is what is in contest, and the parties agree that there is caution against the use of dictionaries in an interpretative task. In House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44, Mason P said at [28]:
"A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time to time and place to place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose."
In Clearcut Homes Pty Ltd v City of Ryde Council [2020] NSWLEC 1249 ("Clearcut"), the interpretation of the objective of cl 4.1B of the RLEP 2014 was before the Court. At [46], I stated:
"In understanding the objective, the principles of statutory construction apply equally to an environmental planning instrument (Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]). This entails considering the text of the objective itself, and its context within cl 4.1B and within the instrument."
Similarly, in considering the meaning of "the road frontage", the principles of statutory construction require that I consider the ordinary meaning of the text itself, and its context within cl 4.1B and within the instrument.
The Council's submissions on the meaning of "the road frontage"
The Council submits that the phrase "road frontage" in cl 4.1B(2)(b) refers to the lineal extent of the front boundary of an allotment. Dr Berveling, counsel for the Council, submits that the word "road" operates as the adjective for the noun "frontage", such that the "frontage" is the front of the lot, and the word "road" describes where the front of the lot is on a road.
In support of this position, the Council relies on those parts of the dictionary definitions that refer to "the front of" a building, site or land.
The Council submits that this is consistent with the way that the words "the street frontage" are used within the definition of site coverage in the Dictionary to the RLEP 2014. The definition includes "any part of an awning…that adjoins the street frontage or other site boundary". The Council submits that the reference to both "street frontage" and "boundary" in this definition is a textual indicator that the phrase "street frontage" has a different meaning to "boundary". That distinction, it says, means that the street (or road) frontage must have a characteristic that distinguishes it from other boundaries. The particular characteristic relied upon by the Council is that the street or road frontage is at the front of the lot. The Council therefore submits that the road frontage is the front boundary adjoining a road.
The Council submits that this interpretation is supported by the context of the clause within the instrument, which is that it falls with the development standards in Part 4 of the RLEP 2014, in which cl 4.6 is contained and prohibits the grant of development consent unless certain preconditions are met. As such, and in a context where cl 4.1B sets limitations on the types of lots that can be used for dual occupancies, the Council submits that cl 4.1B is a restrictive clause. The Council says that this supports its interpretation of cl 4.1B(2)(b) and that this also means that the principles of statutory interpretation that apply to beneficial and facultative provisions do not apply to this clause.
Applying this interpretation to what Dr Berveling describes as the factual matrix of the present development application, he submits on behalf of the Council that the front of the lot is oriented to Lavarack Street and it is not possible to say that the site can have frontage to Lane Cove Road. Dr Berveling acknowledges that this is different to the position held by Mr Bazzi, who considered that if the building was designed to face Lane Cove Road it would comply with cl 4.1B(2)(b).
The Council submits that whilst it is possible to have two road frontages, this is not the case in the present circumstances given that there is no frontage to Lane Cove Road. The Council submits that if the lot is considered to have two road frontages, then the road frontage development standard would need to be satisfied with respect to both road frontages. In this respect, the Council relies on two decisions of the Court, Jenny-Lynn Properties Pty Limited v Rockdale City Council [2010] NSWLEC 1014 and Oreison Pty Limited v Hurstville City Council [2012] NSWLEC 1210. In both matters the Court considered cl 40(3) of the State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004. This clause required that "the site frontage must be at least 20 metres wide measured at the building line". In each case, the Commissioner determined that both of two boundaries that abutted roads were "site frontages" which were required to comply with the clause.
For all of these reasons, the Court's position is that the frontage to Lavarack Street does not comply with the requirement for "the road frontage" to be 20m, and therefore consent can only be granted pursuant to the provisions of cl 4.6 of the RLEP 2014.