Land and Environment Court (NSW)|1997-10-07|Before: Lloyd J, Appeal P, Clarke JA

The application of this clause was correctly explained by the assessors in the following terms:

"Clause 14A of the LEP 1989 prohibits residential flat buildings in a Residential 2(c) zone if the criteria set out within this clause are satisfied, notwithstanding that residential flat buildings are permissible with development consent under cl 19 of LEP 1989. If the criteria are satisfied then the residential flat building is prohibited and further merit assessment is superfluous."

The approach of the assessors was thus consistent with the principle explained by Clarke JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) at 235-236. In that case, after referring to cl 9 of the local environmental plan, in which the zoning table is incorporated and is expressed to operate "except as otherwise provided", Clarke JA said:

"Clause 14A(1)(a) falls within the exception. It provides otherwise. It prohibits the carrying out of a specific development viz the erection of a residential flat building on particular blocks of land situated in zone 2(c). It is as much concerned with land use as cl 9 is for it prohibits the use of land enjoying the specified characteristics for the named purpose. In a sense it both supplements and qualifies cl 9. It qualifies the clause because it prohibits the use of identified blocks for a purpose which use would otherwise be permissible under the zoning table and it supplements cl 9 by making further provision in respect of land use within zone 2(c).

There is no requirement that all provisions regarding land use appear in cl 9. Indeed the opening words `Except as otherwise provided' make it plain that other provisions bearing on land use appear in the plan and are intended to have operative effect notwithstanding that there is a measure of inconsistency between those clauses and cl 9.

Understood in this way the zoning provisions and cl 14A(1)(a) operate in conjunction. Under the table a number of uses are prohibited throughout the zone. Under cl 14A(1)(a) an additional land use (residential flat buildings) is prohibited in respect of particular sites within the zone, those sites being identified by the nature of the principal buildings on adjoining land. No doubt the particular prohibition could have been incorporated in cl 9 and if that had occurred I apprehend it would not be suggested that it lay down a development standard."

Although Clarke JA was referring to par (a) of the clause, his Honour's statements would apply equally to par (c).

The appellant alleges that the proposed development contravenes cl 14A in two respects. Firstly, it is said that it does not comply with cl 14A(1)(c) and the assessors erred in holding that the proposal complied therewith. Secondly, it is said that the proposed development does not comply with cl 14A(2) in that the floor area contained within the roof of the building was a storey within the meaning of the local environmental plan and the assessors erred in finding to the contrary.

Clause 14A(1)(c) - Whether attached dwellings could reasonably be erected on the site in a manner which would enable the occupants of those dwellings to enjoy reasonable sunshine and privacy.

The assessors' conclusions on this issue are described in their decision as follows:

"The key phrase in this subclause is `could reasonably be erected'. We accept Mr Byrnes' evidence that this must refer to an attached dwelling project which would be reasonable from a number of view points, including that of economic viability. It is clear that it would be possible on this site (and indeed on most sites) to erect a small number of attached dwellings in such a way that they would receive reasonable sunshine and privacy. We believe, however, that in this case the number of dwellings would be so small (perhaps in the order of six to eight), that the project would be unreasonable in the context of the area and of the site which is dominated by the flat buildings around it and already has eight dwellings on it. The alternative attached housing schemes which the council suggested for the site (which contained in the order of about 20 dwellings) were unreasonable because the dwellings as well as the courtyards were too small, and they were widely overlooked from the surrounding blocks of flats.

On the evidence we are satisfied that cl 14A(1)(c) cannot be satisfied as any attached housing scheme which could be reasonably erected would not enjoy reasonable sunshine and privacy."

The appellant submits that the assessors erred in law in two respects in applying par (c). Firstly, it is said that par (c) is directed towards matters of design. The paragraph requires that, in respect of any site in the residential 2(c) zone, on which multi-unit housing is in contemplation, consideration must first be given to development in the form of attached dwellings rather than in the form of a residential flat building. In this context the question of the economic viability of the proposed development does not arise for consideration. Secondly, it is said that regard to the form of other development in the vicinity is irrelevant to a consideration of par (c), except insofar as that surrounding development affects shadow and privacy on the subject site. The word "reasonably" is not to be read disjunctively, but controls the words which follow - " ... must be erected in a manner which ..." - so that the focus of the word is on the development on the subject site.

The respondent to this appeal submits that the word "reasonably" in par (c) must be given its ordinary meaning, which enables a consideration of any matter which may affect the erection of attached dwellings on the site. Those considerations cannot be read to exclude economic considerations. Reference was made to the dictionary meanings of "reasonably", as "with good reason, justly; sufficiently, suitably; at a reasonable rate; to a reasonable extent" (New Shorter Oxford English Dictionary) and "endowed with reason; agreeable to reason or sound judgment; not exceeding the limit prescribed by reason; not excessive" (Macquarie Dictionary). Moreover, the question of what can be reasonably accommodated on the site cannot be limited solely to issues of sunshine and privacy. To do so would be to ignore the use of the word "reasonably" where it appears in par (c), making it otiose if limited to any other expression.

In my view, in its consideration of the word "reasonably" in par (c) the consent authority is not to be concerned with the economic viability of a proposed development. That is not a planning or environmental consideration. Similarly, s 90(1)(d) of the Act is not directed to the economic viability of a proposed development. In other words, it is not part of the assessment of a proposal under the Act for a consent authority to examine and determine the economic viability of a particular proposal. It seems to me that the only relevance of the economic impact of a development is its effect in the locality; that is to say, in the wider sense described in Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675 at 687. In particular, par (c) of cl 14A(1) is directed to the physical structures which could reasonably be erected on the site. To import questions of economic viability would put the consent authority in the place of the entrepreneur or developer, requiring it to make commercial decisions which may have no relationship to the kind of commercial decisions motivating the particular entrepreneur or developer.

However, the assessors' decision does not seem to have been based on a finding that economic viability is a relevant consideration in determining whether attached dwellings could reasonably be erected within the meaning of the sub-clause. The assessors held that whilst it would be physically possible to erect on the subject land a small number of attached dwellings in such a way that they would receive reasonable sunshine and privacy, the number of dwellings would be so small that the project would be unreasonable in the context of the area and of the site dominated by the flat buildings around it.

I do not accept that the word "reasonably" can be read down in the manner suggested by the appellant. If it were to be so construed, then the word would be otiose. The appellant's construction of par (c) would be equally effective if the word "reasonably" was absent. I must assume that the word "reasonably" was inserted deliberately. It was therefore open to the assessors to have regard to the physical features of the surrounding development in assessing the reasonableness of the alternative development of attached dwellings. This approach would be consistent with the whole of cl 14A(a), sub-cll (a) and (b) which are not limited in the manner described by the appellant. That is to say, the whole of cl 14(d)(1) is directed to a consideration of physical constraints external to the subject site, as well as those of the subject site itself. That is the context which governs the construction of the clause.

It follows that the assessors did not err in law in their application of cl14A(1)(c) and, accordingly, I cannot disturb the assessors' findings of fact, as follows:

"On the evidence we are satisfied that cl 14A(1)(c) cannot be satisfied as any attached housing scheme which could be reasonably erected would not enjoy reasonable sunshine and privacy."

Clause 14A(2) - Whether the floor area contained within the roof of the building was a storey within the meaning of the North Sydney Local Environmental Plan 1989.

`Storey' is defined in the local environmental plan in the following terms:

"'storey' means any floor or part of a floor regardless of use but does not include:

(a) an attic contained wholly within the roof space where the roof has a maximum pitch of 36 degrees; or

(b) a parking area contained wholly within a basement which is below the natural ground level."

The assessors described the proposed building as follows:

"The uppermost level is within the roof area of the proposal with sunlight being gained through dormer windows and glass panelled gable ends. The roof contains a range of pitches with sections of flat areas."

Without expressly saying so, the assessors appear to have concluded that the uppermost level of the building was not a storey. They referred to the definition of `storey' which I have quoted above. Their conclusion on this question is contained in two sentences:

"With no specific definition of an attic and with similar examples in the near vicinity, the gable ends together with the dormer windows, flat sections and changes in pitch provide an interesting an aesthetic roof design which is compatible with roofs in the area."

The appellant submitted that the uppermost level of the proposed building is not capable of falling within the definition of `storey'. The appellant referred to the assessors' description of the uppermost level of the building as having dormer windows, gable ends and sections of flat areas. Accordingly, it was submitted, the uppermost level of the building could not be described as being "contained wholly within the roof space where the roof has a maximum pitch of 36 degrees".

The respondent relied on the dictionary meanings of the word `attic', namely, "designating the highest storey of a building, under the beams of the roof or a room in this; the highest storey of a house, us. immediately under the beams of the roof; a room in this" (New Shorter Oxford English Dictionary) and "that part of a building, esp. a house, directly under a roof; a garret; a roof or rooms in that part, frequently used for storage; a low storey or decorative wall above entablature or the main cornice of a building" (Macquarie Dictionary). The respondent submitted that it was beyond question that the uppermost level of the building was wholly within the roof space - the dormer windows, gable ends and flat sections were all part of the roof. Moreover, the flat elements of the roof did not infringe the maximum pitch of 36 degrees.

I have come to the view that the respondent's submissions are to be preferred. The reference by the assessors to "similar examples in the near vicinity" is, however, irrelevant on the question of whether the uppermost level of the subject building is a storey within the meaning of the instrument. As I have noted above, however, although the assessors did not expressly say so they must have concluded that the uppermost level of the building was not a storey as defined in the instrument. It was reasonably open for the assessors to so find. An examination of the plans of the building show that the uppermost floor level is wholly contained within the roof space. The flat sections of roof are clearly less than a pitch of 36 degrees. The dormer windows and gable ends are themselves under a roof which is at a pitch of less than 36 degrees. Moreover, it was reasonably open for the assessors to find that the uppermost level was an attic. Since these are findings which are reasonably open to the assessors, they are findings of fact which I am unable to disturb.

(2) The appellant, North Sydney Council, must pay the costs of the appeal.

I certify that this and the 7 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

P D MAYOH PTY LTD v. NORTH SYDNEY COUNCIL No. 10219 of 1997 [1997] NSWLEC 149 (7 October 1997)

P D MAYOH PTY LTD v. NORTH SYDNEY COUNCIL No. 10219 of 1997 [1997] NSWLEC 149 (7 October 1997)

At a glance

Court

Decision date

Before

Source

Judgment (33 paragraphs)

Cases Cited (2)

P D MAYOH PTY LTD v. NORTH SYDNEY COUNCIL No. 10219 of 1997 [1997] NSWLEC 149 (7 October 1997)