Victorian Civil and Administrative Tribunal|2000-01-31

Payton v Kingston CC [2000] VCAT 216 (31 January 2000)

Planning; "storey"; "attic"; whether roof space or roof cavity constitutes an attic or a storey; interpretation of legislation; context of words in legislation

1. The application for an enforcement order pursuant to Section 114 of the Planning and Environment Act 1987 in Application No 1999/72246 is dismissed.

2. The application for a declaration pursuant to s 149A Planning and Environment Act 1987 is dismissed.

3. Reserve liberty to apply for costs provided any application for costs is made within 60 days of the date of this Order.

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Mr A Lindeman of Counsel, instructed by Bailey Timms Hansen and Rossis, Solicitors, appeared for the Applicant.

Mr T Montebello of Maddock Lonie & Chisholm, Lawyers, appeared for the Respondents.

Mr Adrian Finanzio of Counsel, by direct brief, appeared for the Responsible Authority.

1. The Respondents, Mr and Mrs Hartelt, own an existing double storey flat roofed cream brick dwelling at 3 Camp Street, Chelsea (`the subject land').

2. The Hartelts do not front the beach. There is a house directly in front of them between them and the beach with a council car park diagonally opposite. That house obstructs their views of the foreshore.

3. They intend to add a pitched roof to their existing two storey dwelling, and have received building approval from a private building surveyor to construct internal alterations to the dwelling and add a pitched roof. It will be a trussed colorbond roof construction using the external walls as load bearing. The building plans, reference 990320/3 (4 sheets) dated 3 September 1999, show a hip and gable colorbond roof construction with the hip at a 15° pitch over truss roof construction at 600 centres. The trusses are fixed to a top plate with pressed metal framing anchors. There is to be sarking to the underside of the roofing. At the gable end of the roof the pitch is 30°. The building plans also show the internal floor to ceiling heights of the ground and first floor to be 2400mm each respectively.

4. The Applicant, Mr Payton, is the owner of the property at 4 Bath Street, Chelsea, immediately behind the subject land. The Applicant also has a two storey house, which the evidence of his affidavit sworn 21 September 1999, supported by photos, shows to have been carefully designed to get the best of the view towards the Bay over the flat roof of the Respondents' house.

5. Mr Payton's grievance concerns the proposed Hartelt roof construction, not only because of obstruction of his views towards the Bay, but also because of the radiant heat that will bounce onto his balcony and living rooms from the expansive new hipped roof.

6. Mr Payton's second storey is constructed in such a way as to include a cathedral ceiling, which means that rather than having a traditional or conventional form of ceiling, the ceiling of the second storey is actually the underside of the roof rafters. The significance of mentioning this is that Mr Payton was required to obtain a planning permit for the construction of his dwelling because the second storey of his dwelling exceeded a height of 3.5m (due to the cathedral ceiling design). He obtained the consent of the predecessor in title to 3 Camp Street, Chelsea, to so build, and had oriented his living rooms and his balcony (which runs the length of his house) to take advantage of the Bay views to the greatest degree possible.

7. Mr Payton sees it as anomalous that he was required to obtain planning permission for his two storey house, because the cathedral ceiling construction brought the height of his second storey to more than 3.5 metres, whereas the Hartelts are not so required because, as the council sees it, a conventional ceiling between the floor of the second storey and the roof does not bring the height of `the storey' in excess of 3.5 metres.

8. Mr Payton is aggrieved that the council insists the Hartelts do not require a planning permission for their alterations and roof addition at 3 Camp Street, Chelsea and has, therefore, brought two applications to the Tribunal to require the Hartelt's to seek planning permission. The first application is for an enforcement order under s.114 of the Planning and Environment Act 1987 (`the Act'), seeking the following enforcement order:

That works to increase the height of 3 Camp Street, Chelsea do not commence unless the required planning permit is obtained.

9. The second application brought by Mr Payton was pursuant to section 149A of the Act, seeking the following declaration:

That in compliance with Clause 146 of the Kingston Planning Scheme, before the second storey height of 3 Camp Street, Chelsea is increased beyond 3.5m a planning permit be obtained.

10. Mr Payton has endeavoured to get the Hartelts to either construct a different type of roof so that his present views to the bay are not completely blocked out or, preferably, not build a pitched roof at all. The Hartelts wish to improve the appearance of their property from an aesthetic point of view, and therefore wish to add a pitched roof.

11. Not having been able to convince the Hartelts to change their mind, Mr Payton seeks a declaration from this Tribunal that the Hartelts are required to seek planning permission for their alterations and extensions pursuant to Clause 146 of the Kingston Planning Scheme.

12. In that way, Mr Payton seeks to be able to appeal to the discretion of the Responsible Authority, on issues of amenity, when it comes to make a decision on whether or not a permit should issue.

13. The subject land is situated in a Residential C zone under the Kingston Planning Scheme and is also within a Height Control Area, HC79. Its area exceeds 300 square metres. Therefore, under the Residential C Zone provisions in clause 131 of the Planning Scheme, no permit is required for the proposed alterations. Under the height control clause 146-1, Mr Lindeman argued that a permit was required. This was contested by both the Respondents and the Responsible Authority.

14. The plans show that there is to be a conventional ceiling between the floor of the Respondents' (second) storey and the proposed new pitched roof.

15. The Respondents do not intend to use the additional internal space created by the pitched roof for any purpose (other than, perhaps, tradesman's maintenance).

16. The space under the pitched roof would be sealed by the ceiling of the upper storey, save for a trapdoor or `manhole' enabling tradespeople to attend to repairs or maintenance. There will be no flooring, only the trusses, fixed with centres 600 mm apart. There would be no conventional staircase up to the roof cavity. There may be a tradesman's `roof ladder'. The height of the roof space would be considerably lower than acceptable for a habitable room - an adult could not stand up in it.

17. Mr Lindeman for Mr Payton maintained that the roof space height was 1525mm, while Mr Montebello for the Hartelts maintained that the internal roof space height was 1170 metres and reducing. Mr Montebello disagreed to the extent of 375mm and exhibited a cross section of the roof space provided by the respondents' draftsman showing:

(i) the maximum internal roof space height between the timber members to be 1170 mm, being the space between the bottom rail of the roof truss and the underside of the timber member forming the apex of the truss;

(ii) a 768 mm roof space as the hip decreased in height from the apex towards the ceiling of the second floor.

18. At the apex, there was a difference of 375mm between them, but for the purpose of this decision, its matters not, for in both cases it is impossible for a human being to stand upright in the space, even assuming there were a floor upon which the person could stand at all.

19. Mr Lindeman for the applicant conceded that it would be very difficult to put a room in the roof, because of the interference of the truss method of roof addition and the low overall height of the roof. He conceded that there was no intended use of the roof space.

20. However, his argument was that it "constitutes an attic, not by what the intention is but by what is possible by way of use". His argument continued that what was possible by way of use was the ability to put one's hand in the roof space and store spare items, or even enter the roof space, necessarily crouching or crawling, to access storage space.

21. The roof would be unlined, the space unventilated. There would be no windows. In short, it is an unremarkable, ordinary and standard pitch colorbond roof.

"A building or works constructed in a height control area in the Table to this clause must not exceed the maximum height_._

Except with a permit_, a building must not be constructed in HC77, HC77A or HC79_ if any storey exceeds a height of 3.5 metres_._

The height of a building or works is the height of its highest point above the permanent footpath at the centre of the site frontage. If there is no footpath, the natural surface level at the centre of the site frontage is the base level.

The maximum height in a HC 79 area is determined as follows:

HC 79 2 storeys excluding any basement or 2 storeys of residential use and development above one storey of car parking. No part of that storey used for car parking may project more than 1.2m above the mean natural level directly beneath the part of the building comprising the uppermost storey, including any balcony.

Works which do not form part of a building must not exceed 6m in height".

23. `Storey' is defined in the Regional Section of the planning scheme to mean:

"That part of a building, whether enclosed or not, between floor level and the floor level next above, or if there is no floor above, that part between floor level and the ceiling above. It includes an attic, mezzanine and built-over car parking area".

24. The Applicant also maintained an argument that a permit was required because this was a replacement building pursuant to clause 146-2 which reads:

"A permit may be granted to replace a building or works existing on the approval date but which does not meet the height requirements of this Clause. The replacement building may be higher only if the Responsible Authority is satisfied an increased height improves the amenity of the area".

25. There are at least two identified ways in which anomalies in the Height Control Area No. 79 occur.

26. The first is that s_ingle storey_ houses which have cathedral ceilings where the floor to ceiling height is more than 3.5 m need a planning permit, whereas double storey houses which have `conventional' ceilings but no cathedral ceilings, do not, provided the upper storey is below 3.5 m floor to ceiling. However, double storey buildings which do have second storey cathedral ceilings above 3.5 m in height floor to underside of roof (instead of conventional ceilings) need a planning permit because of the first part of the clause.

27. The second anomaly in clause 146-1 is that because there is no upper height limit to two storey buildings, provided there is a conventional ceiling between the second floor and the roof space, any height pitched roof can be added without planning permission - whereas if there is a cathedral ceiling (which eliminates a conventional ceiling) so that the second storey exceeds a height of 3.5 metres, planning permission is required. This is the case even if the overall height of both building types is identical.

28. Sketch plans faxed by the Responsible Authority to the applicant reveal anomalies in the height controls which affect single storey and double storey single houses in Kingston - and the Responsible Authority acknowledges these anomalies.

29. The effect of the Responsible Authority's interpretation of the clause is that there is no overall maximum specified height limit in the height control area HC79. Because the height of a "storey" is controlled, overall height is controlled to a certain extent. The absence of control over the height of the roof pitch, however, means that in the case of HC 79, the control is only partial.

30. The above anomalous and `absurd' results, to use Mr Lindeman's descriptive words and argument, cannot be. Therefore, Mr Lindeman relied upon several different arguments to augment his case that one way or another, the `roof space' was a storey within the meaning of clause 146-1.

(i) the roof space is a `storey' (the `floor and ceiling' argument);

(ii) the roof space is an `attic' (the attic argument);

(iii) the stairwell argument - which was expressly abandoned on Day 2 of the hearing;

32. This argument concerned the cavity of more than 3.5 metres in which a

33. As this argument was withdrawn by Mr Lindeman on the second day of the hearing, I will not even enter into a description of the argument.

34. Mr Lindeman argued that the building works to be undertaken came within the words of clause 146-2 and needed a permit anyway. As all the double storey dwelling remains, and only a pitched roof is to be added, I find there is no "replacement" of an existing building, rather an addition to, or renovation of, same.

35. Mr Lindeman relied on the word `reconstructed' in the heading to clause 146-2 which says `reconstructed or replacement buildings' although the body of the clause itself contains no word `reconstructed'.

36. It is a clear rule of statutory construction that headings are not part of the legislation and are to be disregarded if there is no ambiguity in the text. See the Interpretation of Legislation Act 1984, s.36.

"No marginal note or footnote in an Act or subordinate instrument and no heading to a provision of an Act or subordinate instrument (not being a provision referred to in sub-section (1)) shall be taken to form part of the Act or subordinate instrument".

and Bennett v Minister for Public Works (NSW) [1908] HCA 50; (1908) 7 CLR 372 at 383:

"But where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment".

37. As there is no ambiguity in the clear words of the body of clause 146-2, the word `reconstructed' in the heading is to be disregarded.

The roof space is a `storey' (incorporating the `floor and ceiling' argument)

38. `Storey' is defined in the Regional Section to mean:

That part of a building, whether enclosed or not, between floor level and the floor level next above, or if there is no floor above, that part between floor level and the ceiling above. It includes an attic, mezzanine and built-over car parking area.

39. Mr Lindeman argued that the use by the draftsman of the word "includes" makes the definition of storey very wide to the extent of encompassing this roof space because there was no common genus or class created between the three specified examples included in the second sentence of the definition. Furthermore, he argued, actual use of the space was irrelevant to the way the area should be classified. Since the definition was `inclusive' a wide meaning that would prima facie advance the objects and purposes of the clause should be preferred (drawing on IW. v City of Perth and Others (unreported FC 97/027 per Cummin, J, 31 September, 1997). Since the purpose of the clause 146 was height control, and since there as otherwise no maximum specified overall height, inclusion of roof space would give some sort of meaning to the clause.

40. Mr Finanzio responded that the definition of `storey' is an exhaustive one, as the subsequent words only identify or give examples of, spaces that fall within "that part of a building between floor level and the floor level next above, or if there is no floor above, that part between floor level and the ceiling above". In other words, each of those classes or examples have a floor and a ceiling.

41. Drawing upon Bellcorp Pty Ltd v City of Bayside (1998/99287), an unreported decision of Member Monk, he argued that just as a `roof deck' was held not to be a `storey' because there was no ceiling or floor level above, so too is this roof space not a `storey' because there is no ceiling or floor level above.

42. Mr Montebello responded that the definition of `storey' is not unlimited in terms of how widely the net is cast, notwithstanding the use of the word `includes'. By way of analogy he referred to K A Reed _v Bayside City Council and Cummin (_1997/91013), an unreported decision of Members Barr and Mulcahy, who held that roof top terraces did not fall within the definition of `storey'. This was despite the fact that many of them have panels on the side akin to walls and canopies above akin to ceilings. Member Marsden in Marspi Marketing Pty Ltd v Kingston City Council (1997/55215, unreported) came to a similar conclusion.

... the definition does in fact provide assistance to what comprises a storey. It is that part of a building that has a floor and a ceiling.

An attic therefore, is a part of a building which should have (and characteristically does have) a floor and a ceiling. A mezzanine is that part of a building which characteristically has a floor and a ceiling. A built over car park also has a floor and a ceiling although probably of the concrete variety.

In each case though, the floor is conveniently trafficable and the ceiling is some form of lining over one's head.

It is submitted that attic, mezzanine and built over car park, therefore, are examples of genus which is that part of a building which has a floor and a ceiling. In that context to identify that part of a building that does not have a floor as a storey is to go outside the genus contained within the definition. While the definition of "storey" is inclusive, it is limited in terms of what it includes. It is submitted that it does not include mere roof space having no floor.

44. Basically, both responses were identical, and the Tribunal agrees that there is a common class or genus in both sentences of the definition, ie a floor and a ceiling. Accordingly, as the area in the roof space which forms its lower surface has no floor, the roof space therefore does not have a characteristic vital so as to constitute that part of the building as a "storey".

45. Mr Lindeman addressed Deputy President Bruce's previous finding that to constitute an attic the room must be a habitable room, by arguing that a wider rather than narrower meaning should be given to the word `attic'. Use as a `room' was not the only relevant use and use as `storage' was an equally legitimate use. At 1170mm or at 1525mm the space could be used for storage and that constituted an `attic' for the purpose of clause 146-1, thus requiring the Hartelts to apply for a planning permit.

46. Mr Lindeman drew comfort for this `alternative use' argument from the 1.2 metre projection mentioned in the maximum height control in HC 79 of clause 146-1. That projection limited the overall height of a basement car park above mean natural level directly beneath that part of the building comprising the uppermost storey, including a balcony, to 1.2 metres. What Mr Lindeman did was to substitute the word `basement' for `car park' and extrapolate that just as one can use 1.2 metres under a house for storage (eg of lawnmowers, gardening tools etc), by crawling or crouching, one can equally use 1.2 metres of roof space for storage.

47. His premise is flawed because, the clause, although it places an arbitrary projection limitation upon basement car parks, does not place a limitation upon basements.

48. Mr Lindeman then turned to many dictionary definitions of `attic'. He argued that the dictionary definitions of `attic' include spaces that are not habitable. They read:

that part of building, especially a house, directly under a roof; a garret;

room or rooms in that part, frequently used for storage;

The accessible space within a sloping roof of a house, often used for storage;

a habitable upper storey or room(s) built entirely within the roof space in a building, with stair access from the floor below and usually lit by dormers or Sky lights..

`attic' n.space or room within the roof of a house

1. a small order (column and entablature) placed above another order of much greater height constituting the main façade.

[usually an attic order, with pilasters; whence the name].

2. attrib. Quasi-adj in Attic storey: orig. the space enclosed by such a structure; hence the top storey of a building, under the beams of the roof, where there are more than two stores 1724.

3. The highest storey of a house, or a room in it; a garret. Hence joc. The brain 1817.

(v) The Penguin Dictionary of Architecture, Fleming, Honour and Pevsner:

`attic' storey. 1. A storey above the main ENTABLATURE of a building and in strictly architectural relation to it, as, eg. In Roman TRIUMPHAL ARCHES. 2. Also, more loosely, the space within the sloping roof of a house or the upper storey of a building if less high than the others.

(vi) Glossary of Building Terms published jointly by NCRB; Standards Australia et al.

A low storey or decorative parapet above the main cornice of a classical building, originally intended to hide the roof slope.

The accessible space within a sloping roof of a house, often used for storage.

A habitable upper storey or room(s), built entirely within the roof space of a building, with stair access from the floor below and usually lit by dormers or skylights.. See also: Loft.

(vii) The Illustrated Dictionary of Historic Architecture by Harris:

`attic' 1. A garret. 2. In classic building, a storey built above the wall cornice. 3. That part of the entablature above the cornice used to hide the roof of a structure or to make the structure more impressive. 4. (cap) Pertaining to the district of Attica in Greece.

49. Mr Finanzio for the council agreed with Mr Lindeman that that there could be two common meanings of an attic, one encompassing a habitable room and one encompassing a roof space. Mr Montebello argued that only the former was contemplated by the clause. Mr Finanzio agreed with Mr Lindeman that an `attic' may be:

* the vacant space between a ceiling and a roof; and

* a room in a house which is situated in the roof and used as any other room in the house might be.

50. However, Mr Finanzio differed from Mr Lindeman about which of the above two meanings of the word was relevant in the context of clause 146-1.

"... two possible meanings of the word `attic' are open. The first meaning focuses on the fact that there exists a space in the roof, the second that the space is habitable. Indeed, it might be said that the distinction is recognised in common parlance. It would be right to say that every house in metropolitan Melbourne with a pitched roof has an attic to the extent that there exists space in the roof between the ceiling of the storey below and the roof cladding. However, obviously every house in metropolitan Melbourne does not have habitable attic space. For example, when offering a house for sale, a real estate agent is unlikely to rely on mere roof space as an enticing feature of a home to be described as an attic. It is submitted that one might use the word attic in two ways as a matter of common speech. One might refer to the mere empty space inside the roof as an attic, although it is not uncommon for this space to be referred to as `in the roof" or as the `the roof' instead of referring to that space as an attic. On the other hand, one may refer to a room located within that space as an attic, as is often done by estate agents and the like. The effect or meaning of the word attic will be different depending on the context and the purpose sought to be achieved by the legislation."

51. Mr Lindeman argued that the definition of `storey' is inclusive and not exhaustive, because of:

(i) the use of the word `includes' in the definition; and

(ii) the lack of genus between the three specified classes, `attic', `mezzanine' and `built-over car parking area'.

52. Mr Lindeman argued that as there is no genus between the three specified classes, the word `attic' should be interpreted broadly, to include a space capable of being used for storage, not just a habitable room.

53. Although Mr Finanzio agreed with Mr Lindeman that an attic can have the above two meanings, ie both a habitable and a non-habitable (storage) space, he responded that, in the context of the subordinate legislation, and the common genus between the examples specified, the word `attic' was limited to a habitable space.

54. As was held in FCT v Applegate [1920] ArgusLawRp 104; (1979) 27 ALR 114, where a word has several shades of meaning, the context in which it appears will be of the greatest significance.

55. In determining which of the two pertinent meanings of `attic' are to apply in this case, regard must be had to the context in which that word appears: FCT v Applegate [1920] ArgusLawRp 104; (1979) 27 ALR 114 and Pearce and Geddes, Statutory Interpretation in Australia @ pp.99-100.

56. The use of the word `attic' forms part of the definition of the word `storey'. `Storey' is defined in the Planning Scheme to mean:

That part of a building, whether enclosed or not, between floor level and the floor level above, or if there is no floor level next above, that part between the floor level and the ceiling above. It includes an attic, mezzanine and built over car parking area.

57. Mr Lindeman asserted that the definition is of an `inclusive' rather than `exhaustive' nature. Mr Finanzio contended that this is not the case. He argued:

The first part of the definition, dealing with the physical characteristics of a building, quite specifically sets out the characteristics necessary in order that a part of a building be considered a storey. The part of a building which is properly considered a storey for the purpose of the definition has a floor and either a floor level above or a ceiling (Tribunal's emphasis).

If the first part of the definition is to be taken alone, there can be no doubt that, for the purposes of the Planning Scheme, the definition of the word storey is exhaustive.

The confusion arises with the "inclusion" of the list of additional items - attic, mezzanine and built over car park.

It is worth observing that each of these items could fall comfortably within the first part of the definition. First, a mezzanine could have a floor level and or ceiling above, as could a built over car park. An attic, given the discussion above, could indeed have a floor level and a ceiling above.

Pearce and Geddes identify this dilemma at page 186. The learned authors draw the classic distinctions between definitions that use or imply "means" (intending that the definition be exhaustive) and those which employ the word "includes" (intending that the definition be inclusive).

However, the text writers observe that this classical and helpful distinction is not always employed in the drafting of legislation, and that sometimes the "means" and "includes" methodology are employed simultaneously in the same definition.

The text writers contemplate the scenario where what is "included" in the definition falls naturally within the meaning of the word defined. In such a situation, the definition is considered to be an exhaustive list of those items that would normally fall within the meaning of the word defined, to the exclusion of other possibilities: Y Z Finance Co Pty Ltd. v Cumming [1964] HCA 12; [1964] ALR 667. In the present case, if the Tribunal concluded that "attic" meant something more than the mere space inside the roof, but instead meant some habitable room in that space, then it is submitted, the definition of "storey" would be an exhaustive one."

To read "attic" as meaning other than habitab1e space in a roof may result in the definition being an inclusive or expansive one - but the question to be asked is what else could the definition include? What other parts of a building other than those mentioned could be properly referred to as a storey?

It is argued by the Applicant that the definition of "storey" is inclusive, and that as such the word "attic" must be given its broadest meaning. On this basis, it is argued that obviously uninhabitable roof space is an "attic" and therefore a "storey" within the meaning so ascribed in the planning scheme.

It is argued by the Applicant that the appearance of this word coupled with "mezzanine" and "built over car park" should have no limitation on the meaning of the word "attic", and that there is no genus to be derived from this list of words.

It is submitted that on the contrary, the list of words properly construed clearly displays a genus. Each area is a place that might be frequented by humans in the ordinary course of inhabiting a dwelling. None of these places require a human to crawl or scramble in order to pass. They are each spaces in which a person may stand erect and conduct the normal day to day business of living in a dwelling.

To ascribe other than the meaning of the word "attic" consistent with that genus is to create the exception to what would otherwise be a perfectly obvious category of spaces in a dwelling.

The Applicant asserts that it is not possible to ascribe this meaning to the word "attic" and at the same time expand upon what is stated in the first part of the definition. This is not correct. It may be for example that it is possible for a person to stand erect in an "attic" that has a floor but no ceiling, and would therefore not otherwise be caught by the definition of "storey".

58. Mr Montebello, on the other hand, disagreed that both meanings of the word `attic' could be contemplated within the meaning of the clause, and responded that because of a common genus between the examples specified, ie the fact that they were all usable spaces (being a different genus to that identified by Mr Finanzio) only a `habitable' room attic was possible in the context of the clause and the planning scheme.

59. Mr Montebello relied on commonsense and a need to `eschew creating absurdities' and avoid `technicalities and angels dancing on pinheads' (Leibler v City of Moorabbin (1992) 8 AATR 188). He argued:

"The difference is to be found in a characteristic of the latter, namely the purpose for which the space may reasonably be used. An attic constitutes roof space but which has a particular purpose either by design or by adaptation. It is not simply roof space which has no purpose other than the architectural feature over a house which keeps out the weather.

It is unnecessary to set any general rules in this case. The facts of the case are most relevant and revealing. In the facts of this case, the space that the applicant contends is an attic is a space which from a perusal of the approved building plans.

* Sits between the roof bottom plate ceiling rafters and the underside of the roof rafters. It is to be noted that the roof consists of a truss roof construction located at 600 centres making the roof space a maze of timber structures within which it would be difficult and dangerous to manoeuvre for any person.

* There is no floor structure as such. There are simply bottom plates which are the bottom rung of the roof truss again at 600 centres.

* There is no ceiling as such. There is simply the corrugated iron roof sitting on sarking which in turn sits on the trusses.

* There are no openings for ventilation. Neither is their mechanical ventilation. There is no natural light. There is no easy means of access and no provision for electrical lights. There is no heating. There is no smoke alarm.

* The tallest area is approximately 1200-1300 high after allowing for the thickness of the timber used in the truss construction. This reduces with the 15 degree roof pitch so that it is impossible for any person (other than a small child) who ventures into the roof space (if they can get into it), to stand within it.

* It is difficult to move around within the roof space with any degree of convenience.

60. Mr Montebello agreed with Mr Finanzio that in determining which meaning of `attic' applies in this case, regard must be had to the context in which that word appears.

"Reference to dictionaries is useful but by no means the sole means of determining the ordinary meaning of the word. The definitions set out by the applicant are noted. The Respondent will also refer the Tribunal to dictionary meanings which it is submitted indicate that the definition of the word is intended to refer to not just any space under a roof but a useable space which usually forms part of what the household would described as, at least, a storage space forming part of the house. For example, the Macquarie dictionary defines attic as:

1. that part of a building, especially a house, directly under a roof; a garret;

2. a room or rooms in part, frequently used for storage.

If one was to described Mr Hartelt's proposed house how would one described it? Would one say it is a house with an attic? The answer is a firm and incontrovertible no. It is a plain two storey house. Contrary to the Applicant's contention, on the interpretation that the Respondent contends for, the use or intended use of the space is relevant. The use of the space or the intended or likely use of the space is to be considering having regard to, among other things, the proposed construction gleaned from documents such as the approved building plans. On no sensible basis could the roof space in this case be described as an attic or to use the Macquarie definition extrapolated in the relevant way, it is not:

A room in that part of a house which is directly under the roof frequently used for storage.

It is submitted that when one has regard to the ordinary meaning of the word, the most appropriate meaning in the context of a house is the space comprising a room between the ceiling and the roof. The difference between attic and roof space is that there is some residential purpose to the space in the case of an attic and no purpose to the space in the case of mere roof space."

61. I consider that there are in fact two common characteristics between the three specified classes, both of which render the definition an exhaustive one.

62. I agree with Mr Finanzio, that there is a genus, that being that each space is capable of being used by human beings in the ordinary course of human activity, ie in an upright manner.

63. I also agree with Mr Montebello, that there is a genus because each space is useable in that each has a floor and a ceiling and that is the common class between them. The use of this space will have no floor, rather one will have to crawl over the trusses, avoiding falling through the ceiling plasters, in order to traverse the roof space. Nor will it have a ceiling, only sarking to the underside of the colourbond metal roof cladding. I find therefore that this roof space is just that, a cavity and not an `attic'.

64. Mr Lindeman argued that as there is no `purpose' to be found in clause 146 Height Control clauses, the purpose must be found in the general purposive and remedial provisions of the Planning and Environment Act 1987, sections 1, 4 etc and must be to create an `even playing field' or a `fair go for all' so as to require, on amenity grounds, planning permission for development that would obstruct views or emit radiant heat.

65. Mr Finanzio argued that, according to the Interpretation of Legislation Act 1984, section 35 (a) and (b):

... a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object;

consideration may be given to any matter or document that is relevant including but not limited to ...

66. The s.35(b) `relevant matter of document' referred to by Mr Finanzio is the Explanatory Statement to the height overlay controls introduced into the planning schemes of a few municipalities which front Port Phillip Bay. He argued that Amendment 363 of the Melbourne Metropolitan Planning Scheme evinces an intention to protect views from the Bay to the foreshore, rather than the views of the Bay from the foreshore, evinced from the following statements:

"This amending scheme provides for the introduction of building height limits within the Port Phillip Bay Coastal Environment extending from St Kilda to Frankston..............these height limits applied to all development within an area extending from the foreshore to between 200 metres and 1 kilometer inland. Throughout the subject area existing development has not had a severe impact on the Bayside foreshore ......due to the nature of part of the coastal area at Chelsea .....in order to safeguard a unique part of the Seaford foreshore_.... (Tribunal's emphasis)."_

67. Mr Lindeman countered with alternative extrinsic material, that the purpose was not limited to protection of the coastal environment from the Bay but included consideration of the `character and appearance of the immediate locality, building heights, building bulk and setbacks to adjoining sites'. He extrapolated this from:

(i) the fact that Bayside Planning Sceheme specifically mentioned protection of the coastal environment from the Bay, whereas Kingston Planning Scheme was silent on the matter; and

(ii) the future Design and Development Overlay which may come into force with the future gazettal of the New Format Kingston Planning Scheme, which includes the above additional considerations.

68. I am persuaded that the specific Explanatory Statement and the then proposed height control provisions does explain the purpose of the control as protecting views of the foreshore from the Bay rather than the opposite, and is not designed to protect residents' views to the Bay, or give the broader section 4 `fair go' protection desired by the Paytons.

69. Mr Lindeman argued that as the planning legislation is designed to be remedial or at least beneficial, the clause ought to be interpreted so as to give his client a remedy to the extent that planning permission be required to enable his client a say on the planning merits, even if ultimately his client is unsuccessful. Firstly, I am not persuaded that the Planning and Environment Act 1987 and its subordinate legislation is remedial or beneficial legislation. Secondly, I consider I cannot so interpret without straining the words of the clause to produce an absurd result.

70. If Mr Lindeman's argument is successful, since anything over `two storeys' is prohibited in HC 79 (and for that matter HC 77 & 77A) if the roof space constituted a third storey above the second storey ceiling, all two storey buildings with a conventional ceiling and a pitched roof would be prohibited along the foreshore. Notwithstanding that anomalies exist, I should eschew creating absurdities2.

71. I find in the particular facts of this case, that the roof space, because of its design and constituent parts, is merely a roof cavity and not an `attic'. I find on the facts that due to its built form, it has no potential to reasonably and objectively be used for storage or for retrieving stored goods.

72. I think it is ridiculous to call roof space in which one is forced to crouch or crawl, an `attic' in the context of this definition, this clause and this planning scheme. Furthermore, as Mr Montebello pointed out, it is even impossible to crouch or crawl as there will be nothing between the trusses except the ceiling plaster, so that one would be forced to crawl, clutching onto the timber trusses at 600 mm intervals. I consider I would not only be straining the words of the clause but rewriting the clause in an unanticipated and unacceptable manner.

73. We all agree that there are anomalies - but that is no excuse for me to engage in `exotic legalism'[1], and add complexities and `angels dancing on pinheads'[2] to an already anomalous situation. If the anomalies are so unpalatable, the town planners and legislators will have to re-draft, if they wished such a situation as the Hartelts' roof space to be caught by clause 146-1.

74. It was agreed that the order should give the parties liberty to apply for costs provided any application for costs was made within 60 days from the date of this Order. I will so order.

[1] Pacific Seven v Sandringham [1982] VicRp 14; [1982] VR 157 @ 163

[2] Leibler v City of Moorrabbin (1992) 8 AATR 188

Payton v Kingston CC [2000] VCAT 216

At a glance

Court

Decision date

Source

Judgment (161 paragraphs)

Payton v Kingston CC [2000] VCAT 216 (31 January 2000)

Parties

Cases Cited (2)