Marchese Partners Architects Pty Limited v Warringah Council

CITATION : Marchese Partners Architects Pty Limited v Warringah Council [2002] NSWLEC 31 APPLICANT Marchese Partners Architects Pty Limited PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 10850 of 2001 CORAM: Cowdroy J KEY ISSUES: Development Consent :- whether development is prohibited LEGISLATION CITED: CASES CITED: Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404 DATES OF HEARING: 01/03/02 DATE OF JUDGMENT: 03/14/2002

In these proceedings a question of law has arisen for determination by the Court. The question for determination has been formulated as follows:- 1. Whether on the true construction of the Warringah Local Environmental Plan 2000 (LEP) the proposed development is 'development of new apartment buildings' as referred to in the desired future character of the G8 Locality in the LEP.
The question arises in consequence of an application for development No. 2001/509DA ("the application") made by the applicant to the Warringah Council ("the council") on 26 April 2001 for redevelopment of land known as lot A DP103286. Upon such land which is also known as 38 Queenscliff Road, Queenscliff ("the site"), the applicant proposes to demolish the existing residential flat building and in lieu thereof erect a flat building containing nine dwellings over four habitable storeys together with a basement and underground parking. The proposed building will be substantially larger than the existing flat building.
On 20 November 2001 the application was refused by the council and this appeal was instituted. Zoning
Prior to 5 December 2000 the site was affected by the provisions of the Warringah Local Environmental Plan 1985 ("LEP 1985"). Pursuant thereto it was zoned residential 2(a) which permitted residential flat buildings to be developed on the site with consent of council. On 5 December 2000 the Warringah Local Environmental Plan 2000 ("the LEP") was gazetted. It is agreed that the provisions of the latter plan apply to the application.
Pursuant to the provisions of the LEP the site is located within "G8 - Queenscliff locality". The introductory text to Appendix G of the LEP contains a desired future character statement ("DFC") for the area known as G8 Locality. The first paragraph provides:- The Queenscliff locality will remain characterised by a mix of detached style housing and apartment buildings in landscaped settings interspersed by complementary and compatible uses. The development of new apartment buildings will be restricted to the medium density areas shown on the map. The site is not located within " medium density area " as described in the map referred to in the introduction.
Before granting development consent to a development the consent authority must be satisfied that it is consistent with certain criteria as required by cl 12 of LEP. Such criteria includes relevant general principles of development control as specified in Pt 4 thereof (cl 12(1)(a)) and any relevant state environmental planning policies described in Sch 5 (cl 12(1)(b)). Clause 12(2) provides:- 12(2) Before granting consent for development, the consent authority must be satisfied that the development will comply with: (a) the relevant requirements made by Parts 2 and 3, and (b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out. Clause 12(3) provides:- 12(3) In addition, before granting consent for development classified as: (c) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or (d) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement.
Clause 14 of the LEP provides that for the purpose of cl 12 development of land within a locality is classified by the relevant Locality Statement as being within Category One, Category Two and Category Three. Development for "housing" is a Category One land use. Applicant's submissions
The applicant submits that despite the literal meaning of the words used in the introduction, the erection of a new flat building in a locality other than that identified as medium density area is permissible where such building is erected upon land which has previously been used for such purpose. That is, it is only in respect of development comprising a new flat building on a site which has not previously been developed for this purpose which is prohibited.
In support of the submission the applicant relies upon certain definitions contained in the LEP. The definition of dwelling is as follows:- dwelling means a room or a suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. Existing building is defined as follows:- existing building means a building which existed on the day this plan took effect, but does not include a building proposed to be substantially reconstructed. Housing is defined as follows:- housing means development involving the creation of one or more dwellings whether or not used as a group home.
Significantly, the dictionary contains no definition of "apartment, nor apartment building, nor new apartment building".
The applicant submits that since the desired future character statement recognises that the G8 Locality will continue to comprise "housing", which includes "dwellings", an apartment building constitutes "housing" as defined. It also submits that future development can comprise new apartment buildings as a form of "housing".
The applicant submits that upon a true interpretation of LEP the objective is not to prohibit replacement buildings in the G8 Locality which meet such objectives. Instead the purpose is to restrict apartment buildings which are developed for the first time to the medium density precinct. The submission is supported by the assertion that it could not have been the intention of the LEP to prohibit replacement apartment buildings upon land on which Category One development for housing is permissible and consistent with the DFC.
In support of its interpretation the applicant provides the example of a flat building being destroyed in the G8 Locality. It submits that if the LEP is interpreted literally, existing use rights could be rendered otiose by the LEP if the flat building could not be rebuilt. Council's response
The council submits that the words "new apartment building" are to be afforded their ordinary meaning, and that such words in the LEP do not warrant any departure from the application of such meaning. It submits that the proposed development is for a new flat building which pursuant to the provisions of the Locality Statement is restricted to the medium density areas shown on the map.
The council does not agree with the submission of the applicant that an existing flat building cannot be otherwise redeveloped. It relies upon Appendix G of the LEP which permits alterations to be undertaken to apartment buildings under the category of "complying development". Council also relies upon the provisions of cl 16(1) of the LEP which recognises "existing use" development. Council is authorised by cl 16(2) of the LEP to grant development for such work provided that it is "of a minor nature and does not, to any significant extent, change the scale, size or degree of any building or land use" even if the development is inconsistent with the DFC of the locality.
Accordingly, the LEP does not prevent the refurbishment, repair, rehabilitation or renovation of a flat building provided such work is not such as to render the apartment building "a new apartment building". Findings
In Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404 McHugh JA (as he then was) said at p 423:- In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpsoe(sic) of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.
Applying this principle to the LEP, it is apparent that a code for the development of land is created in G8 Locality and further that there is no basis to hold that the word "new" used in the DFC should not be given its grammatical meaning.
The DFC statement makes no provision for the erection of new apartment buildings outside medium density areas specified in the map for the G8 Locality. The DFC statement, by virtue of its specific reference to "new apartment buildings" demonstrates the clear intention to prohibit such development outside the medium density areas. The term "new" is intended to refer to future development of apartment buildings and the term "new" is to be read in such context.
The Court has considered the submission of the applicant that the word "new" could have been eliminated from the DFC if the intention was to restrict apartment buildings to the medium density area. However, the Court concludes that the use of the term "new" is intended to refer to future development of apartment buildings following the commencement of operation of the LEP and that the term "new" is to be read in such context.
The results could prove anomalous in the case of the examples provided by the applicant, namely destruction of the building and potential impact on existing use. However, the intent of the LEP is clear, and the restrictions on development of existing flat buildings has been specifically addressed in cl 16(2) of the LEP. The Court can discern the plain intention from the text that development of flat buildings, whether new or existing is to be restricted. In the case of new flat buildings, such development is to be prohibited even if such development is to replace an existing flat building, unless it is proposed for the medium density area. Answer to Question of Law
The answer to the question of law asked of the Court is as follows: Upon the true construction of the Warringah Local Environmental Plan 2000, the proposed development is " development of new apartment buildings " as referred to in the desired future character statement of the G8 Locality in the Warringah Local Environmental Plan 2000. Orders

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