Mark Makhoul v Parramatta City Council

Australand Holdings Ltd v Parramatta City Council (2003) 128 LGERA 411; Calleja v Botany Bay City Council [2005] NSWCA 337; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Cranbrook School v Woollahra Council [2006] NSWCA 155; CASES CITED: Delbant Pty Limited v North Sydney Council [2005] NSWLEC 657; Gibb v The Commissioner of Taxation of the Commonwealth of Australia (1966) 118 CLR 628; Kingston and Another v Keprose Pty Ltd (1987) 11 NSWLR 404; Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226; Rizzi and Another v Rockdale Municipal Council (1994) 85 LGERA 113; Rockdale Municipal Council v M & L Rizzi, Land and Environment Court, unreported, 10 May 1991, Bignold J

APPLICANT Mr G McKee (solicitor) SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES:

RESPONDENT Mr P Marincowitz (solicitor) SOLICITORS Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: Introduction 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the respondent's refusal of development application 374/005 for development described as construction of a residential flat building containing 11 units on land known as 22 Robert Street, Telopea, being lot 3 in Deposited Plan 38302.

2 The land is zoned residential 2(c) under the Parramatta Local Environmental Plan 2001 (the "LEP"). In the 2(c) zone, residential flat buildings are permissible with consent while high density housing is prohibited. The Council's primary contention is that the development proposed in the development application is high density housing not a residential flat building. Hence, the Council says that the development is prohibited. The applicant says that the development is a residential flat building and is permissible with consent.

3 Although the issue of permissibility of the development appears to have been characterised at one time in the proceedings as a question of law, both parties accept that it is (at best) a mixed question of fact and law. The matter has proceeded before me today on the basis that I am seized of the whole of the s 97 appeal, and not merely a separate question relating to permissibility. This course is appropriate having regard to the observations of Preston J on a not dissimilar question in Delbant Pty Limited v North Sydney Council [2005] NSWLEC 657.

4 Clause 16(1) identifies the development of land in each zone that: (a) may be carried out without development consent, and;

(b) may be carried out only with development consent, and;

(c) is prohibited. 5 In the 2(c) residential zone the table includes: - (i) item 3, development that does not require consent, and specifies exempt development as the only class under that item; (ii) item 4, development allowed only with consent, and specifies (relevantly) development for the purposes of residential flat buildings, (but not high density housing), and (iii) item 5, prohibited development, specified to be any development not included in items 3 or 4.

6 "Residential flat building" is defined in the Dictionary to the LEP as follows: Residential flat building means a building containing three or more dwellings but (in the Table to clause 16) does not include a building elsewhere specifically defined in this Dictionary.

7 There is a building elsewhere specifically defined in the Dictionary, namely "high density housing". That term is defined as follows: High density housing means a building containing three or more dwellings which is four or more storeys in height.

8 The LEP distinguishes between two classes of residential development containing three or more dwellings: residential development containing three or more dwellings four or more storeys in height is development for the purpose of high density housing. Otherwise the development is residential flat building (assuming the building is not elsewhere specifically defined in the Dictionary).

9 "Storey" is also a defined term in the Dictionary: Storey means the space within a building between one floor level and the floor level next above or, if there is no floor level next above, the ceiling or roof above, but does not include:

(a) space used for car parking, laundries or storerooms, if the ceiling space does not protrude more than 1.2 metres as measured vertically above the natural ground level immediately below, or

(b) attic space that is part of the dwelling unit immediately below and is incapable of being used as a separate dwelling unit.

Height of a building means the vertical distance measured in metres between natural ground level at any point above which any part of the building is sited, and the ceiling of the topmost floor of the building directly above that point.

Basement carparking means a car park that does not protrude more than 1.2 metres above natural ground level.

Multi unit housing means three or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling, but (in the Table to clause 16) does not include any other form of dwellings elsewhere specifically defined in this plan.

11 The terms "ground level" and "natural ground level" are not defined in the LEP.

12 Clause 39 concerns height limits in residential zones and provides: (1) Consent shall not be granted to the erection of a building, if the height exceeds: (a) two storeys above ground level for dwellings, dual occupancies and multi unit housing, or (b) three storeys above ground level for residential flat buildings, or (c) six storeys above ground level for high density housing. (2) Despite any other provisions of this clause, development within the areas shown hatched in blue within Inserts B and C on the zoning map shall not exceed a height of three storeys above ground level for the first six metres from the façade of the building.

Facts 13 There is no dispute about the facts. Drawing A1.02 shows the basement car park of the building. On the western boundary the plan shows an area described as "lower level tiered planting below path and proposed fill". Drawing A1.03 shows the planting and entry path. Drawing A1.08 shows the western and southern elevations. The ground level prior to the works proposed in the development application is also shown.

14 There is a lower retaining wall on the western boundary. That retaining wall retains fill. The retaining wall is about 1.5 metres above the pre-development ground level. Behind the retaining wall is the fill, the planting and the path. Set back from those items is the wall of the basement car park. That wall projects no more than 1.8 metres above the level of the path and the planting which sit on the fill. It projects more than 2 metres above the dotted line shown on the plan, which is the ground level before the development takes place.

15 The Council submitted that: (1) Natural ground level in the definition of "storey" means the level of the ground prior to the development being carried out. This is the ordinary meaning of that phrase, in which "natural" is used in contradistinction from" artificial" or "contrived".

(2) The decision of Cowdroy J in Australand Holdings Ltd v Parramatta City Council (2003) 128 LGERA 411 about the meaning of the phrase "natural ground level" in the definition of "multi unit housing" was distinguishable having regard to the context and purpose of the definitions.

(3) If Australand Holdings was not distinguishable then, on the particular facts of this case (where the fill proposed is limited to a narrow band around the western and southern boundaries of the site) a finding would not be made that the facts fall within the meaning of "natural ground level" as that phrase appears in the definition of "storey".

(4) There is some ambiguity in the LEP's use of: (a) "natural ground level" in the definitions of "storey", "height of a building", and "multi unit housing, and (b) "ground level" in cl 39. Hence, the context, the general purpose and the policy of' the provision are the surest guides to its meaning ( Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397). (5) Here the context, the general purpose and the policy of the definition of "storey", at least insofar as basement car parks are concerned, is to ensure that they are countered as a storey if they project above the pre-development ground level by more than 1.2 metres. Clause 39 then regulates the number of storeys apparent above the ground level, meaning the finished or post-development ground level.

16 The applicant submitted that: (1) The reasoning of Cowdroy J in Australand Holdings Ltd v Parramatta City Council should be applied.

(2) In particular, the LEP, in defining "storey", did not refer to the "existing natural ground level". It referred only to "natural ground level". Hence, the definition did not introduce any temporal requirement.

(3) The Council's approach was artificial. If "natural ground level" is not necessarily ground level from time immemorial, as the Council conceded in Australand Holdings Ltd v Parramatta City Council , then land might be excavated or filled for a variety of reasons. When, the applicant asked rhetorically, do such artificially created levels become "natural ground levels"?

(4) These problems can be avoided by construing "natural ground level" in the definition of "storey" as meaning the finished or post-development ground level.

17 In Rockdale Municipal Council v M & L Rizzi , Land and Environment Court, unreported, 10 May 1991, Bignold J considered the meaning of the phrase "existing natural ground level" in a condition of development consent. His Honour said, at p 7, that: I think, 'natural' assumes its ordinary meaning (e.g. 'existing in or formed by nature; constituted by nature': The Macquarie Dictionary). But in the case of a parcel of residential land situate in the suburbs of metropolitan Sydney in 1991 the adjective 'natural' is quite apt to create problems if it is to be relied upon as providing a crucial datum for the measurement of height controls imposed upon a proposed building upon an existing developed site...

However I do not think the adjective 'natural' in the expression 'existing natural ground level' requires or justifies recourse to speculation as to the original landform contours of the subject land.

Given its context and its clear purpose to establish the relevant datum (for the purpose of height control), the expression 'existing natural ground level' in my judgment means the ground level of the building site existing at the date of development consent in its natural state, as opposed to an artificially modified, state.

18 The Court of Appeal in Rizzi and Another v Rockdale Municipal Council (1994) 85 LGERA 113 at 115 agreed with Bignold J.

19 Cowdroy J in Australand Holdings Ltd v Parramatta City Council (2003) 128 LGERA 411 at 416-417 rejected the Council's submission that the words "natural ground level" in the definition of "multi unit housing" meant pre-development ground levels, because the words were not qualified by the word "existing". Hence Cowdroy J distinguished Rizzo and at p 417 said that: The purpose of the open space requirement as is evident from the definition is to provide private open space at natural ground level, that is such space is not to be provided at a level above ground, such as by an elevated platform or deck, or below ground. The open space at ground level is to be provided at a level commonly understood to be ground level. The words natural and ground describe the requisite level and do not impose an additional constraint that the private open space must be of natural ground, rather it is this level as created by the development at which open space is to be provided to satisfy the definition. So considered natural ground level does not mean the natural ground level of the site before development but the finished ground level of each of the dwellings comprising the multi unit housing development. Such interpretation of natural ground level is consistent with the objectives of the LEP particularly the objectives which seek to simplify planning controls in the City of Parramatta and to encourage development of a range of housing styles including multi unit housing.

20 In Port Stephens Council v Chan Industrial Pty Ltd (2005) 141 LGERA 226 the Court of Appeal dealt with a definition of height as follows: Height in relation to a building , means the maximum height of the building measured vertically from the natural ground level or the finished ground level of the completed building, whichever is the lower.

21 The Court of Appeal cited the judgment of McHugh JA in Kingston and Another v Keprose Pty Ltd (1987) 11 NSWLR 404 at some length at [12]-[14], particularly at 423 where his Honour said: A purposive and not a literal approach is the method of statutory construction which now prevails … 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 purpose 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.

22 With respect to the definition relevant in Chan the Court of Appeal said at [35] that: The requirement that the height be measured from the lower of the natural ground level or the finished ground level of the completed building emphasises the objective of minimising the impact of the building in terms of overlooking/privacy, overshadowing and visual bulk. Those impacts can only result from that part of the building which stands above the surface or level of the ground abutting it. The combined purpose of encouraging as much of the building that does not comprise residential uses to be below ground level and the objective of minimising the impacts of that part of the building above ground level, in my view requires the "finished ground level of the completed building" to be construed as a reference to the finished ground level which abuts the completed building at any point along its external walls.

23 In Cranbrook School v Woollahra Council [2006] NSWCA 155 the Court of Appeal, at [36], said that: Environmental planning instruments are a species of delegated legislation ... A construction should be preferred that is consistent with the language and purpose of all the provisions of such instruments.

24 At [36] - [37] in Cranbrook School , the Court cited Gibb v The Commissioner of Taxation of the Commonwealth of Australia (1966) 118 CLR 628 at 635 and at [39] said that Gibb "underlines the proposition that the meaning of a definition turns on the context in which it appears".

25 The Court referred at [62] to the lament of Tobias JA in Calleja v Botany Bay City Council [2005] NSWCA 337 at [25] that: Any attempt to always find planning logic in planning instruments is generally a barren exercise.

26 The Court (at [63]) endorsed the statement in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 as applicable to environmental planning instruments.

27 The provisions of the LEP must be construed in context. That having been said, it is well recognised that planning instruments not infrequently exhibit internal inconsistency and apparent lack of logic.

28 In Australand Holdings Ltd v Parramatta City Council , the trial judge expressly noted that the use of the phrase "natural ground level" elsewhere in the LEP was not directly relevant to his decision. Although the trial judge distinguished Rizzi by the absence of the word "existing" in the LEP, the primary basis for his conclusion was that, in the context of the definition of "multi unit housing", the focus of the definition was the ultimate useability of the private open space to be provided. Such private open space was required to be directly accessible from the dwelling at natural ground level rather than at a level below or above the ground (such as by a deck or platform). In this specific context, his Honour considered that the phrase "natural ground level" in the definition "multi unit housing" encompassed the finished ground levels of the development.

29 It seems to me that the function of the phrase "natural ground level" in the definition of "storey" in the LEP differs from the definition considered in Australand Holdings Ltd v Parramatta City Council . The definition of "storey" in the LEP has only two functions that I can ascertain. First, it distinguishes "residential flat buildings" from "high density housing. Secondly, it is the criterion of reference for the development standard in cl 39.

30 Clause 39 presents a number of potential ambiguities. It uses the word "height" in a context where the actual control is by way of the number of storeys, not absolute height. This creates ambiguity given the separate definition of "height of a building" in the Dictionary to the LEP. The clause refers to "ground level" not "natural ground level". For residential flat buildings it refers to "three storeys above ground level", in circumstances where the definition of residential flat building and high density housing would suggest that a building of more than three storeys is not a residential flat building at all. However, there is a potential resolution of these ambiguities, which enables cl 39(1)(b) to perform sensible work in the instrument. This involves accepting that, at least insofar as the definition of "storey" and cl 39 are concerned, the draftsperson has deliberately used "natural ground level" in the definition and "ground level" in the development standard.

31 If the phrase "natural ground level" means the level of the ground unaffected by the subject development, then it provides a reasonably clear test for distinguishing between the two categories of development in the LEP which turn on the concept of storeys (that is, residential flat buildings and high density housing).

32 If a building is a residential flat building and not high density housing, then cl 39(1)(b) may come into play. For such a building only three storeys may present above ground level (albeit recognising that cl 39 is a development standard amenable to objection under SEPP 1).

33 This explanation is (perhaps) best understood by reference to the diagrams provided by the applicant's planner in his report. The diagram on p 15 shows a residential flat building. It is a residential flat building because the space used for car parking would fall outside the definition of "storey" - as that level is wholly below the pre-development ground levels, making the building so shown three storeys. However, the building so shown would contravene cl 39 because it is more than three storeys above ground level (in the sense of the finished or post-development ground level). To be granted consent, an objection under SEPP 1 would need to be upheld. The building shown on p 16 is not a residential flat building because the car park protrudes more than 1.2 metres above the pre-development ground levels.

34 The definitions of "residential flat building" and "high density housing" determine the character of the development purpose by reference to the number of storeys. In this context, the words "natural ground level" must take their ordinary grammatical meaning; that is, a level unaffected by the very development for which consent is sought, such levels being contrived or artificial ground levels, and not natural ground levels. Clause 39 has a separate function to perform. It regulates the apparent or perceptible height of the building above ground level, being the post-development or finished ground level.

35 The LEP thus regulates the class of development "building containing more than three dwellings" in two separate ways. First, it creates two classes, namely "residential flat buildings" and "high density housing". It does so by reference to the definition of "storey". To be a residential flat building the building must not exceed three storeys, but a car parking level below the pre-development ground level, or not more than 1.2 metres above the pre-development ground level, does not count as a storey. Such a development is a residential flat building and is permissible relevantly, for example, in the 2(c) and 2(d) zones. However, such a development is also subject to cl 39(1)(b). It also must not exceed three storeys above ground level (a control concerned as in Port Stephens v Chan with apparent or perceptible bulk/height).

36 If the building containing more than three dwellings has more than three storeys or three storeys and a car park level, where that level protrudes more than 1.2 metres above the pre-development ground level, the development purpose is not a "residential flat building" at all. Clause 16 of the zoning table operates. That development may only be carried out in the 2(d) zone and not the 2(c) zone. That development would then be subject to cl 39(1)(c) of the LEP, but as "high density housing".

37 For the purposes of the definitions of residential flat building, high density housing and storey, I do not consider that the absence of the word "existing" can lead to a contrary conclusion. The words "natural ground" and "ground" each qualify the concept of "level". The words "natural ground level" direct attention to the pre-development levels of the land. The words "ground level" direct attention to the post-development levels of the land.

38 I do not accept the applicant's submission that this is necessarily arbitrary. Once it is recognised that the "storey" definition has two functions, and even accepting that cl 39 has some drafting difficulties, the scheme in the LEP provides for the control of development of these two classes in a reasonably practical manner. It is true that if land is cut or filled at some time that altered level may become the "natural ground level" in the future. That type of issue is not uncommon with respect to the operation of planning instruments. That potential does not lead me to the view that, in the specific context with which I am presently dealing, I should depart from the ordinary English meaning of "natural ground level" as a level before the subject development is carried out. This is particularly so in circumstances where, as I have explained, such meaning gives work to all of the relevant provisions of the LEP and is otherwise generally consistent with what I infer is the underlying planning purpose of separating two classes of development, as well as regulating their appearance if otherwise permissible.

39 Hence, I accept the Council's primary contention that the building as shown in the plans presently the subject of the appeal is a four storey building. The space used for car parking is "space within a building between one floor level and the floor level next above" where the ceiling space does protrude more than 1.2 metres as measured vertically above the natural ground level immediately below. The exclusion in the definition of "storey" thus does not apply. As such, the building is not a residential flat building, but is high density housing which is prohibited development in the 2(c) zone.

40 It is not necessary for me to address the Council's alternative argument. That argument raises potentially difficult question of fact and degree, and I prefer not to deal with it in circumstances where I have decided the matter on the primary basis.

41 It follows that I answer the separate questions as follows: (1) "Ground level" in cl 39 of the Parramatta Local Environmental Plan 2001 means the finished or post-development ground level.

(2) "Natural ground level" in the definition of "storey" in the Parramatta Local Environmental Plan 2001 means the pre-development ground level.

(3) The development shown in the plans presently the subject of the development application is development for the purpose of high density housing which is prohibited.

42 I propose to stand the proceedings over for a few weeks so that the parties, particularly the applicant, may consider this decision and its consequences for the appeal, unless someone suggests to me to the contrary. ****************************

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