McClenahan & Anor v North Sydney Council

Introduction 1 This is the separate determination of an issue raised in an appeal against the refusal by the respondent, North Sydney Council, of a development application. (The determination of any question separately from any other question is permitted by Pt 31 r 2 of the Supreme Court Rules, which applies in this Court: see Pt 6 r 1 of the Land and Environment Court Rules 1996.) 2 The question for determination is whether the proposed development is for the purpose of "apartment building adaptation" within the meaning of the North Sydney Local Environmental Plan 2001 ("the LEP"). If it is, then it is permissible with consent; if not, then it is prohibited. The proposed development 3 The proposed development is at No. 57 Cremorne Road, Cremorne Point. Erected upon the property is a dwelling house known as "Strathmore", which is listed as a heritage item of local significance under the LEP. These proceedings are an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the refusal by the council of a development application for the partial demolition of "Strathmore" and the creation of four apartments by way of alterations and additions to that existing building. 4 The plans which accompanied the development application show one apartment on each floor and an underground car park for six cars. The proposed apartments and the car park extend beyond the fabric of the existing building. The areas proposed to be constructed outside the fabric of the existing building are extensive. North Sydney Local Environmental Plan 2001 5 The relevant provisions of this instrument which bear upon the question for determination are as follows. 6 Clause 6 of the LEP is headed "Definitions and interpretation". It states that the words and expressions in Sch 2 have the meaning given to them in Sch 2. Schedule 2 of the LEP is headed "Definitions". It contains the following definitions: apartment building means a single residential building containing three or more dwellings but does not include attached dwellings. apartment building adaptation means the creation of an apartment building within a building, other than an apartment building, that lawfully existed on the appointed day. apartment building revision means: (a) the carrying out of alterations for the purpose of an apartment building, or (b) the creation of a new apartment building within the envelope of an apartment building, that lawfully existed on the appointed day. 7 The proposed development is within the Residential G Zone (Cremorne Point). Development which may be carried out in this zone includes "apartment buildings adaptation" and "apartment buildings revision". If the proposed development in the present case does not come within either of these definitions, then it is prohibited development. 8 The LEP also imposes certain controls for development classified as "apartment building adaptation" and "apartment building revision". Clause 26 is headed "Apartment building revision or adaptation". Sub-clause (1) sets out the specific objectives of the controls and sub-cl (2) sets out the controls themselves. The clause is as follows: (1) Apartment building revision or adaptation objectives The specific objectives of the apartment building revision or adaptation controls are to ensure that development for the purpose of apartment buildings in apartment or other buildings that lawfully existed at the appointed day: (a) is carried out substantially within the fabric of the existing building, and (b) substantially retains the existing external walls and roof of the building in its existing dimensions and locations, and (c) minimises the extension of buildings to accommodate apartment development, and, in particular, minimises any increase in the height or gross floor area of the building, and (d) minimises any reduction in the landscaped area of the site. (2) Apartment building revision or adaptation controls Development for the purpose of apartment building revision or apartment building adaptation must not be carried out if the development involves any alteration or addition to the apartment or other building that lawfully existed at the appointed day which would: (a) cause any material loss of views from other properties or public places, or (b) cause any material overshadowing of other properties or public places, or (c) cause any material loss of privacy to other properties, or (d) increase the height of the existing apartment or other building, or (e) decrease the landscaped area of the existing apartment or other building below the requirements set out in clause 20, or decrease the landscaped area where the landscaped area is already below the requirements in clause 20. The council's submissions 9 Mr S B Austin QC and Mr D R Parry, appearing for the council, rely upon the definition of "apartment building adaptation" and submit that, since the proposed apartments extend beyond the fabric of the existing building, then there is not the creation of an apartment building "within a building … that lawfully existed on the appointed day". (The appointed day means the day on which the LEP took effect, namely, 1 June 2001.) 10 Reliance is placed on the well known passage of Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 304-305: It is only by considering the meaning of the words used by the 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 … 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. 11 Reliance is also placed on the dictionary meanings of the word "within", the primary meaning of which is "inside". And reliance is also placed on Moreton Central Sugar Mill Co Ltd v The Commissioner of Taxation (Cth) (1967) 116 CLR 151. That case was about s 62AA of the Income Tax and Social Services Contribution Assessment Act 1936-1964 (Cth), sub-s (2) of which relevantly stated: (2)…this section applies in relation to any property being plant or articles owned by the taxpayer that is for use by the taxpayer primarily and principally, and directly - (a) in any part of the operations by means of which - (i) manufactured goods are derived from other goods…; or … (e) in the transportation, within [emphasis added] premises within which any property in relation to which this section applies is used, of goods in relation to which that property is to be or has been used. 12 The question in that case was whether the sugar mill company could claim as a deduction certain expenditure of a capital nature, being investment in a locomotive and trucks hauled by the locomotive for the conveyance of cane from points at or near where cane was delivered by growers. The total distance of trucks radiating from the mill was about sixty-one miles, but only about five miles traversed land belonging to the mill. Kitto J held that the locomotive and trucks were not used primarily and principally in the transportation "within" the premises within the meaning of s 62AA(2)(e). In so holding Kitto J said (at 155): The words "within" and "in" seem clearly to indicate that both the transportation and the use of the property in relation to which the section applies must take place inside the boundaries or walls of that to which the word "premises" is applied. … Nearly all the transportation of sugar cane from the pick-up points to the mill site takes place within premises of which the appellant has for the most part neither ownership nor possession, and which therefore, in my opinion, cannot be regarded as part of the premises in which the appellant uses its milling plant. I am clearly of opinion that neither the locomotive nor the trucks are used primarily and principally for transportation within those premises. 13 It is submitted that since the proposed development is not within the definition of "apartment building adaptation", the development application is for prohibited development and so is a nullity and there is no power to consent to it (Chambers v Maclean Shire Council [2003] NSWCA 100 at [44]-[46], per Ipp JA, Sheller and Giles JJA concurring). The applicant's submissions 14 Mr B J Preston SC, appearing for the applicants, relied upon the following submissions. (a) The word "within" in the definition of "apartment building adaptation" is used as a preposition, but does not require that the first object be totally within the second object: whilesoever there is some part of the first object in the interior or inside of the second object, the former can be said to be within the second object. Thus, flowers stand "within" a vase despite the fact that they may project beyond it; a serviette is "within" a serviette ring despite the fact that it extends outside the ring itself; confectionary ice of a snow cone is "within" the cup although the ice may be higher than the lip of the cup; and a building is "within" a parcel of land despite the fact that it may encroach onto an adjacent parcel of land. (b) If it were intended that the first object be wholly within the second object, then the definition would have said so. The definition of "attic" in Sch 2 to the LEP is defined as "space wholly contained within the roof space of a dwelling …." (emphasis added). The definition of "apartment building adaptation" could have similarly contained the words "wholly contained within" if that was the draftsperson's intention. The Court should not interpret the word "within" in the definition to bear the meaning "wholly contained within" if those words were deliberately not chosen. (c) The definition must be construed in its context, which includes the whole LEP, and definitions are not to be treated as substantive provisions. The context in which a defined word is used may indicate a contrary meaning. Reference was made to Cooper Brookes at 304, 319-320, inter alia . Clause 26 of the LEP sets out the circumstances in which the definition is intended to apply; and both the objectives and the controls of that clause are drafted on the expressly stated assumption that an apartment building to be created will not necessarily be wholly contained within the existing building. The definition, as well as the objectives and controls in cl 26 each have work to do, otherwise the development would be eliminated at the definition stage. Conclusions 15 I do not agree with Mr Preston's first submission that the word "within" does not mean that one object need not necessarily be totally within another object. In ordinary language one would not say that flowers stand "within" a vase; rather, they stand "in" a vase. Similarly a serviette is not "within" a serviette ring; but rather, it is "in" a serviette ring. A snow cone is not "within" the cup; but rather, it is "in" the cup. And I do not understand that a building would be said to be "within" a parcel of land if part of it encroaches onto an adjacent parcel. It all depends upon the context in which the word is used. 16 In Cooper Brookes, upon which both parties rely, Gibbs CJ said (at 304): "Of course, no part of a statute can be considered in isolation from its context - the whole must be considered." I have referred above to that part of the judgment of Gibbs CJ in which he states (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,… (emphasis added). 17 In the joint judgment of Mason and Wilson JJ, the following is stated (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." Mason and Wilson JJ went on to hold (at 321) that the propriety of departing from the literal interpretation is not confined to situations described as "absurd", "extraordinary", "capricious", "irrational" or "obscure". Their Honours then state: 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. 18 In applying these principles it seems to me that one must have regard to the operative provisions of the LEP in which the defined words are applied. In the present case that is cl 26, which applies expressly to both "apartment building revision" and "apartment building adaptation". As noted above, the clause first sets out its objectives (sub-cl (1)) and then sets out the controls (sub-cl (2)). The first objective (a) is to ensure that the adaptation is carried out substantially within the fabric of the existing building. The second objective (b) is to ensure that the adaptation substantially retains the existing external walls and roof. The third objective (c) is to ensure that any adaptation minimises the extension of buildings to accommodate apartment development and minimise any increase in the height or gross floor area of the building. The fourth objective (d) is to ensure that any adaptation minimises any reduction in the landscaped area. 19 The clause then sets out a number of specific controls. These include requirements that an apartment building adaptation must not (a) cause any material loss of views from other properties or public places; (b) cause any material overshadowing of other properties or public spaces; (c) cause any material loss of privacy to other properties; (d) increase the height of the building; or (e) decrease the landscaped area below the requirements in cl 20 of the LEP. 20 If the definition of "apartment building adaptation" were to mean the creation of an apartment building wholly within an existing building, then cl 26 would have no work to do. Apartment building adaptation regulated by cl 26 would be otiose. In my opinion both the definition and the operative controls applying thereto must be read together, consistently with the approach explained in Cooper Brookes which I have set out in pars [16] and [17] above. This leads to the conclusion that words "within a building" as used in the definition do not mean "wholly within". If that was the intention then the draftsperson could have used the words "wholly within", or "wholly contained within" as in the definition of "attic". The express use of the words "wholly contained within" in the definition of "attic" and the omission of the words "wholly within" or "wholly contained within" in the definition of "apartment building adaptation", then gives cl 26 some work to do. 21 In reading the definition with the objectives and operative controls in cl 26, particularly objectives (a) and (b), it seems clear that the intention of the draftsperson was that an apartment building adaptation be the creation of an apartment building substantially within an existing building. That would be entirely consistent with both the objectives of cl 26 and the operative controls of that clause. As I have said, if it were otherwise then the draftsperson would have used the words "wholly within" or "wholly contained within", as used in the definition of "attic". 22 As explained in Cooper Brookes, the construction of every statutory instrument depends upon its context and a reading of the instrument as a whole. The facts in the Moreton Cental Sugar Mill case, upon which the council relies, are clearly different and apply in a different statutory context to that which applies here, but provide some guidance on the application of the word "within". 23 I find, therefore, that on a true construction of the LEP, an "apartment building adaptation" requires the creation of an apartment building to be substantially but not wholly contained within a building, other than an apartment building, that lawfully existed on the appointed day. Application to the proposed development application 24 The conclusion to which I have come is not the end of the matter. It would serve no utility unless it is applied to the development application in the present case. The question remains as to whether, on the proper construction of the term "apartment building adaptation" in the LEP, the development proposed in this case is prohibited. 25 I have briefly described the proposed development in pars [3] and [4] above. An examination of the plans which have been tendered in evidence show extensive areas of the proposed apartments outside the fabric of the existing building. It is self-evident that the areas outside the fabric of the existing building are so extensive that it cannot be said that the proposed apartment building is substantially within the existing building (Moreton Cental Sugar Mill Co Ltd v The Commissioner of Taxation (Cth)). 26 This means that the proposed development in the present case is prohibited. There is no power to consent to it (Chambers v Maclean Shire Council). This conclusion is determinative of the appeal, which should as a consequence be dismissed. Orders 27 The formal orders of the Court are: (1) The appeal is dismissed. (2) Development application No. 85/03 for alterations and additions to the existing house at No. 57 Cremorne Road, Cremorne to accommodate four luxury residential apartments is determined by refusal of consent. (3) The exhibits may be returned.