Victorian Civil and Administrative Tribunal|2003-12-12|Before: Stuart Morris J

Poci Bros Pty Ltd v Bayside CC [2003] VCAT 1884 (12 December 2003)

Height control - provision that a building must not exceed a height of three storeys - effect of mezzanine on assessment

MEDIUM NEUTRAL CITATION: [2003] VCAT 1884

2 I declare that notwithstanding the construction of the development proposed in Application 03/0615 pursuant to the Bayside Planning Scheme a permit can be retrospectively granted, or the existing permit amended, to allow the construction of a mezzanine floor in Apartment 4 of 56 Beach Road, Hampton.

REASONS (given orally at the hearing and subsequently revised)

1 Land at 56 Beach Road, Hampton is subject to the Design and Development Overlay of the Bayside Planning Scheme. This overlay provides that a permit is required to construct a building. It further provides that a building must be constructed in accordance with any requirements in a schedule to the overlay. Such a schedule may include requirements relating to building height.

2 The relevant schedule is Schedule 1 to the Design and Development Overlay. This is a schedule which governs the height of buildings and structures in the coastal area of the City of Bayside. Until 2 July 2003 this schedule specified that buildings must be not greater than two storeys in height excluding any attic or basement. Further the provision specified that a permit could not be granted to construct a building which was not in accordance with that requirement.

3 On 2 July 2003 the provisions of the schedule were altered. One alteration was to add an additional design objective to those previously specified. The additional objective was "to manage the increased pressure for higher buildings along the coast". One means by which this additional objective was implemented was by adding an additional sentence to the relevant requirements as to the height of buildings. This additional sentence specifically related to the subject land at 56 Beach Road, Hampton.

4 I infer that a purpose of the amended provision was to make selective allowance for slightly higher buildings in nodal locations along the coastal strip so as to add greater interest and form to the buildings along the strip; and also to better reflect and accommodate development pressures.

5 The relevant part of clause 2 of Schedule 1 now reads:

Buildings and works must be constructed in accordance with the following requirements:

* Building height must not exceed two storeys (excluding an attic or basement). A permit may be granted for buildings and works to a height of three storeys on land at 56 Beach Road, Hampton.

* A roof containing an attic must match typical roof details of the surrounding neighbourhood in terms of roof pitch and form and any windows in the roof must be mounted flush to the roof, recessed or of minimal dimensions.

A permit cannot be granted to construct a building or construct or carry out works which are not in accordance with the above requirements except that a permit may be granted to replace a building or works existing before 24 February 2000 which does not meet the height requirements of this clause.

6 Like so many provisions in planning schemes in Victoria, the provision which the tribunal must now interpret is inelegantly drafted. The provisions of the Design and Development Overlay anticipate that a schedule to the overlay may set out requirements, including requirements as to building height. The general provision relating to building height not exceeding two storeys is readily characterised as a requirement. But the additional sentence which relates to the land at 56 Beach Road, Hampton is not so readily characterised as a requirement. Rather it is facilitative in nature. Nonetheless, having regard to the context of the overlay and the schedule to the overlay, I hold that this additional sentence should be regarded as a requirement and a requirement in this form: on land at 56 Beach Road, Hampton a building must not exceed a height of three storeys.

7 The existing building at 56 Beach Road, Hampton is an old hotel known as the Hampton Hotel. It would appear to have been built in Victorian times and have a typical floor to floor dimension of about 4 metres. Three storey buildings have in fact been erected behind the Hampton Hotel and, being of a modern floor to floor size of 3 metres, are of a similar ultimate height to the existing Hampton Hotel, notwithstanding that it is essentially two levels. If the matter was left there there could be no doubt that the development proposed in Application No 03/0165, which is to construct two penthouses on the top of the Hampton Hotel, would not breach a requirement that the building at 56 Beach Road, Hampton not exceed a height of three storeys.

8 The matter has been complicated by certain works which were undertaken in Apartment 4 of 56 Beach Road, Hampton several years ago. Essentially this apartment is one where the floor to ceiling height is in the order of 3.6 metres. During the construction of the apartment it would appear that the floor was excavated to a depth of 600 millimetres so as to create a portion of the apartment where the floor to ceiling distance is about 4.2 metres. In this space a mezzanine was constructed, on which a bedroom and a bathroom were located, and underneath which was living space. In each of these spaces the floor to ceiling height is about 2.1 metres, a somewhat low height.

9 Concerns have been raised that the existence of this mezzanine results in the building being presently a three storey building; and the construction of the penthouse would then result in the building being a four storey building.

10 The word storey is defined in clause 72 of the scheme as follows:

That part of a building between floor levels. If there is no floor above, it is the part between the floor level and ceiling. It may include an attic, basement, built over car parking area, and mezzanine.

11 I have no doubt that the proper characterisation of the structure within Apartment 4 is a mezzanine. Further, I do not accept the argument put by Mr Molesworth QC and Mr M Townsend to the effect that the last sentence in the definition gives the decisionmaker a discretion as to whether or not to regard a mezzanine as a storey.

12 However it does not follow from the fact that the building has three storeys within it that the height of the building is the height of a three storey building. A somewhat unusual example would be where a person wished to use space to keep dogs within the house . A mezzanine could be constructed within a single storey building so that dogs could be kept at two levels within a normal floor to ceiling height of 3 metres. Black dogs downstairs, white dogs upstairs, or something similar. Each of those levels may well be a mezzanine; and a storey; but that would not result in the conclusion that the height of the building was the height of a two storey building.

13 Turning to what I regard is the key requirement, namely that the building on this land must not exceed a height of three storeys, I find that the construction of the penthouses that are sought by the application will not result in the height of the building exceeding three storeys. The height of the building is to be assessed, not by counting every possible level or every possible storey within a building and then reaching the conclusion by addition; but, rather, is to be ascertained by being armed with all relevant information about the building and then reaching a conclusion as to whether the building should be characterised as a building which exceeds a height of two or three storeys (as the case may be).

14 This approach is called for not only to ensure that the outcome is one that is practical and imbued with common sense, but also to give effect to the clear purpose of the control. I have no doubt that the purpose of the control is to ensure that when observed externally the built form in the coastal strip of Bayside appears to not exceed two storeys, except for attics and basements, and that on the land at 56 Beach Road, Hampton the building has the appearance of not exceeding a height of three storeys. The approach which I have followed in this case gives effect to that purpose.

15 Another way of testing these propositions is to consider what would have been in the mind of the panel and the planning authority at the time Schedule 1 to the Design and Development Overlay was amended to specifically allow the land at 56 Beach Road, Hampton to contain a building that was of a height of three storeys. I have no doubt that at that time the relevant panel, the planning authority and the Minister regarded the existing building, with its mezzanine, as being a two storey building; so the clear intent of adding the additional sentence concerning 56 Beach Road was to allow a permit to be granted for the penthouse. To adopt a technical interpretation in this case, based on an additive approach, would be to thwart the clear policy intent of that amendment. The ultimate role of any court or tribunal in interpreting legislation or subordinate legislation is to give effect to the intent of the legislature or the author of the document. The approach I have followed here and the declarations I am making give effect to that purpose.

For Applicant: Mr S Molesworth QC and Mr M Townsend of counsel

Poci Bros Pty Ltd v Bayside CC [2003] VCAT 1884

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Judgment (27 paragraphs)

Poci Bros Pty Ltd v Bayside CC [2003] VCAT 1884 (12 December 2003)

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