Jeremy Gobbo QC and Roshan Chaile of Counsel, instructed by Minter Ellison

Application for declarations pursuant to s 149A of the Planning and Environment Act 1987.

The declarations relate to the interpretation of the building height controls in the General Residential Zone under the Stonnington Planning Scheme.

The specific declarations sought by the Applicant are as follows:

• a declaration on the maximum building height permissible pursuant to clause 3 of the General Residential Zone Schedule 10 (clause 32.08-7), given the heights of the immediately adjacent buildings at 2-4 Sydney Street (10-storey building) and 7-8 Sydney Street (7-storey building) (First Declaration); and
• a declaration as to whether the maximum building height is taken to mean the height to the roof or parapet of the relevant adjacent building (2-4 Sydney Street or 7-8 Sydney Street), or to the top of the lift overrun (which themselves have a roof) (Second Declaration).

1. Prahran Orrong Park Developments Pty Ltd (Applicant) seeks two declarations in relation to the interpretation of a building height control provision in the Stonnington Planning Scheme (planning scheme) for which Stonnington City Council (Council) is the responsible authority.
2. The Applicant has applied for a permit for a 9-storey residential apartment building on land at 5-6 Sydney Street, Prahran. The land is zoned General Residential Zone (GRZ) under the planning scheme.
3. Clause 3 of Schedule 10 to the GRZ contains a building height control provision, the relevant parts of which read as follows:

A building used as a dwelling or a residential building must not exceed 9 metres ...

• an extension of an existing building or the construction of the new building that exceeds the specified building height which does not exceed the height of immediately adjacent buildings facing the same street.

1. The immediately adjacent buildings facing the same street comprise a 10-storey building at 2-4 Sydney Street, and a 7-storey building at 7-8 Sydney Street.
2. The Applicant contends that the relevant adjacent building is the higher building, and that its proposed 9-storey building does not exceed the height of that building and is thus permissible. The Council contends that the relevant adjacent building is the lower building, and that the Applicant's proposal would need to be reduced in height in order to be permissible.
3. The First Declaration seeks to ascertain the correct meaning of the reference to adjacent buildings in the height control provision and its exemption. On one argument, the matter has been complicated by amendments to the GRZ height controls introduced through Amendment VC110 earlier this year, although clause 3 of Schedule 10 was not amended in this process. I will deal with this issue as part of the consideration of the First Declaration.
4. The Applicant also contends that, in either case, the height of the relevant adjacent building should be calculated to include a roofed plant room and lift overrun that sits above the main roofline on each building. The Council contends that the building height is to be calculated by reference to the height of the main roof or parapet.
5. The Second Declaration seeks to ascertain the correct building height in the context of the height control provision. This may involve questions of fact, in addition to issues of statutory interpretation, having regard to the specific plant rooms on the roofs of the adjacent buildings.

1. In Szwarcbord v Yarra City Council,[1] Senior Member Wright had construed a similar exemption in the Yarra Planning Scheme as limiting the maximum height of the building to the lower of the immediately adjacent buildings facing the same street.
2. Although I am not bound by this decision, as a matter of comity and consistency VCAT will commonly follow an earlier decision that is directly on point, particularly on a question of law or procedure, unless persuaded that the earlier decision was clearly wrong or that it would otherwise be inappropriate to do so.
3. The Applicant contended that I should not follow the decision in Szwarcbord for a number of reasons. I do not propose to determine the matter before me solely as a step-by-step critique on the correctness of the decision in Szwarcbord, but it is nonetheless appropriate to comment on some aspects of that decision.
4. In Szwarcbord, SM Wright had indicated that the aids to statutory construction are primarily to be used when the instrument under consideration exhibits some ambiguity or lends itself to more than one interpretation, and he considered the planning scheme provision in question to be clear and unambiguous.
5. I agree with the Applicant that modern principles of statutory interpretation do not require that there first be some ambiguity in a provision before its purpose or context may be considered as an aid to construction. The Council here did not suggest otherwise.
6. If the Senior Member was offering a different view to this in Szwarcbord, then I would respectfully disagree. However, I do not discern from my reading of his decision that he was saying anything materially different. It is simply the case that matters of statutory construction that come before courts and Tribunals more commonly (or, in SM Wright's words, 'primarily') arise where there is an ambiguity, albeit that an ambiguity is not a prerequisite to the use of the aids of statutory construction. Indeed, that is the case here, where the Applicant contends that there is an ambiguity.
7. Moreover, in Szwarcbord, despite finding that there was no ambiguity, SM Wright did still consider the purpose of the relevant clause in considering its proper construction.[2] The Applicant concedes as much in one of its later grounds of attack on Szwarcbord, where it alleges that the Senior Member only considered the purpose of the GRZ as a whole, rather than what the Applicant considers to be a more specific purpose of the relevant exemption clause.
8. The Applicant also contended that the rigidity of the construction in Szwarcbord will create anomalies as evidenced, in its submission, by the decision in Creative Property Developments Pty Ltd v Stonnington CC.[3] In that case, Member Cook adopted Szwarcbord without elaboration (on the basis its findings were accepted by all parties) but noted that the issue before her was different. The Applicant contends that Member Cook nonetheless departed from Szwarcbord by applying modern principles of statutory interpretation in order to read down the exemption to apply only to adjacent buildings 'in the same zone'. The Applicant further contends that this reading down would not have been necessary if the exemption was properly construed as referring to the higher of the adjacent buildings.
9. I do not consider that the Applicant's contentions are made out. On its face, Member Cook's decision in Creative Property stands for the proposition that, unless a contrary intention is evinced, a planning control or exemption that is specific to a zone applies only to land within that zone. To my mind, this led to a sensible and unremarkable interpretation of the exemption, having regard to its purpose and context. The issue of interpretation in Creative Property arose quite independently of the issue of interpretation in Szwarcbord or here. It does not create anomalies. It simply leads to the outcome that a building in an adjacent zone (e.g. a commercial zone where different height limits may apply) is not relevant to the exemption, irrespective of whether the building in the adjacent zone is higher or lower. As Member Cook articulated, the purpose of the GRZ (to respect neighbourhood character) is more likely to be promoted if the parameters for maximum heights are set within the zone itself by reference to existing or approved building heights within that zone.
10. I am perhaps more sympathetic to the Applicant's contention that clause 3 of Schedule 10 is capable of more than one interpretation, and that it is not as 'clear and unambiguous' as SM Wright had found in Szwarcbord. Indeed, the Council conceded that there was at least the potential for ambiguity in the construction of the clause, albeit that it submitted that the interpretation that it favoured was 'tolerably clear'. I agree.
11. As will be seen, I have ultimately reached a similar outcome to that in Swarzboard, albeit that there are some differences in my reasoning, given the way in which the matter was argued before me.

1. I agree with the Council, and its reference to High Court authority, that the starting point for statutory interpretation is the ordinary and grammatical sense of the statutory words to be interpreted, having regard to their context and legislative purpose. This requires the consideration of the text of the legislation itself, viewed as a whole. Historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text. The language that has actually been employed in the text of legislation will be the surest guide to legislative intention.[4]
2. I also agree with the Council that, in relation to the interpretation of subordinate instruments, including planning scheme provisions, they should be construed in light of practical considerations, having regard to their use by practical people skilled in a particular industry. An interpretation which leads to a reasonably practical result is to be preferred.[5] The Applicant also contended for a practical interpretation.
3. Given the reference by the parties to the decision in Creative Property, I also adopt Member Cook's indication that, in a planning scheme context, the modern approach to statutory interpretation requires a provision to be construed in a way that is consistent with the language and purpose of the relevant part of the planning scheme. The meaning of words is to be ascertained in their context, irrespective of whether the provision raises an ambiguity or inconsistency.[6]

1. Bearing all of this in mind, what is therefore meant by a reference to a height 'which does not exceed the height of immediately adjacent buildings facing the same street'?
2. These words are found in an exemption to what would otherwise be a mandatory maximum height control of 9 metres[7] in clause 3 of Schedule 10 to the GRZ.
3. The Applicant therefore contends that what is principally relevant is the purpose of the exemption itself, and not the zone generally. It says that the purpose of the exemption is to provide flexibility to the decision-maker to consider the construction of a building that exceeds the maximum building height provided that it does not exceed the height of adjacent buildings (i.e. to soften the operation of the mandatory provision), and that this purpose should not be given a narrow application.
4. I agree with the Applicant that the purpose of the exemption is important, but I do not agree that its purpose is 'principally relevant' in the sense of being in some way of overriding weight, independently of its context. If the proper context of the exemption is to be considered, then the zone (i.e. the GRZ), the relevant Schedule 10, the requirement in clause 3, and the exemption to that requirement, are all relevant to a holistic consideration of 'purpose'.
5. By reference to clause 32.08 of the planning scheme, an important and express purpose of the GRZ is to encourage development that respects the neighbourhood character of the area. As an adjunct to this, in recent years, the focus of planning policy has been a move towards more mandatory and preferred maximum height limits for development in residential zones, in order to create greater certainty in planning controls for residential development. Schedule 10 to the GRZ, which applies to the Garden River and Garden Suburban Precincts areas in Stonnington, is an example of this.
6. Having regard to this context, I agree with the Council that the purpose of the exemption is not to provide flexibility and discretion to the decision-maker per se (as the Applicant effectively contends) but rather to provide a confined exemption having regard to the existing streetscape immediately adjacent to the development site, in a manner that respects the neighbourhood character. The very wording of the exemption is limited to the height of immediately adjacent buildings facing the same street.
7. In this context also, the reference in the exemption to the height of immediately adjacent buildings (plural) is relevant. The Applicant referred to s 37(d) of the Interpretation of Legislation Act 1984, which provides that, unless the contrary intention appears, words in the plural include the singular. It therefore contended that not too much should be read into the use of the word 'buildings' in the plural. On this issue, I prefer the contentions of the Council. I consider that there is a contrary intention evinced, and that the use of the plural term in the exemption in clause 3 is intentional and significant.
8. As the Council points out, in Schedule 10, there is a clear distinction in the use of singular and plural nouns relating to the built form. In terms of the exemption in clause 3 of Schedule 10, the reference to 'immediately adjacent buildings facing the same street' invokes a streetscape or neighbourhood character context, consistent with the broader purpose of the zone and schedule, which could not be created by a reference to a single building alone.
9. The Applicant concedes that both possible constructions of the exemption might achieve its view of the purpose of the exemption (in providing flexibility to the decision-maker to soften the effect of the mandatory provision) but argues that a narrower construction 'severely restricts the discretion of the decision-maker'. It contends that an interpretation that permits a building to rise to the higher of the immediately adjacent buildings allows an applicant to take the greatest advantage of the exemption, and better achieves its exemption purpose.
10. I have already indicated that I do not believe the purpose of the exemption should be as widely or generally construed. Moreover, the Applicant appears to confuse the regulatory control itself (i.e. when a permit is required) with the subsequent exercise of discretion to grant or refuse a permit if a permit is required under that regulatory control. Here, the exemption sits within clause 3 which, as its heading suggests, deals with 'Maximum building height requirement for a dwelling or residential building'. The purpose of the clause is to set the regulatory control for maximum height limits, including variations to those height limits having regard to the height of immediately adjacent buildings. I do not discern from clause 3 a purpose to either 'severely restrict' (or, conversely, to open up) discretion, nor to maximise advantage to an applicant. In similar vein, to the extent that the Applicant argues that any concern about an 'out of character' building arising from its interpretation of the clause can be met by the exercise of discretion, this in my view puts the cart before the horse. Discretion is something that will be exercised subsequently, once an application has been made within the confines of the regulatory control. It is not something that itself governs the interpretation of that regulatory control.
11. The Applicant attempted to contend that a contrary interpretation would lead to impractical outcomes, where there was a tall building on one side, and a 'regulation height' building on the other side. An applicant would be unable to bring forward a proposal that stepped-down respectfully between the two buildings, and would be limited to a 'regulation height' building, which would be impacted upon by the tall building on one side. The applicant contended that no merits consideration would be possible, and that a narrow construction would reduce the role of discretionary considerations including the role of policy.
12. In my view, that is exactly what clause 3 envisages under such a scenario, and there is no anomaly. The intermediate building is intended, having regard to the purpose of the zone and Schedule (including clause 3 and the exemption) to respect the height of the lower of its neighbours, or 9 metres. Otherwise, the 'regulation height' building on one side would itself be impacted upon by a new taller intermediate building, which exceeded the generally intended height limit for the area.
13. Moreover, in my opinion, the Applicant's own example demonstrates the impracticality of its interpretation from a planning control perspective. Assuming a tall building on one side, and a 'regulation height' building on the other side, on the Applicant's contended interpretation, the intermediate building could theoretically obtain a permit to build to the height of the tall building on one side, or close to it. The height of that now taller intermediate building, once developed, would then determine the potential maximum height in any redevelopment of the adjacent 'regulation height' building. Over time, there could be a cascading effect of taller buildings along a street, where the intended mandatory height control was rendered largely ineffective, and the intended respect for neighbourhood character was eroded. I do not consider that this was the purpose of the exemption.
14. Finally, the Applicant contends that the interpretation for which the Council contends would effectively require the word 'lower' to be read into the exemption (i.e. a building height which does not exceed the height of the lower of immediately adjacent buildings facing the same street). I do not think that this necessarily follows. However, equally and on the same argument, the Applicant's contended interpretation would effectively require the word 'higher' to be read into the exemption. In my view, nothing is gained either way by this contention.
15. It follows from all of the above that, by reference to the text of the provision, and having regard to its purpose and context, the exemption should be construed as meaning that a building cannot exceed the height of either of the immediately adjoining buildings facing the same street. Effectively, this means that the height of the lower adjacent building will be determinative of the extent of the exemption.

1. There was discussion at the hearing about the potential effect of Amendment VC110 on the application or interpretation of clause 3 of Schedule 10. Amendment VC110 was introduced into the planning scheme on 27 March 2017, after the decision in Szwarcbord, and after this proceeding had been commenced. The Amendment changed the GRZ at a State-wide level, but did not change Schedule 10 to the GRZ at a local Stonnington level.
2. Prior to Amendment VC110, the GRZ had not previously contained extensive provisions about maximum building height requirements. The detail of such matters was left to local schedules. Subject to a different maximum building height being specified in a schedule, Amendment VC110 introduced a default maximum building height in the GRZ of 11 metres or 3 storeys. Under clause 32.08-9, this default height could be exceeded in certain defined circumstances, including if:

There are existing buildings on both abutting allotments that face the same street and the new building does not exceed the building height or contain a greater number of storeys than the lower of the existing buildings on the abutting allotments.

1. At first blush, this exemption in the GRZ appears to be an attempt to impose a similar exemption at a State-wide zone level to what appears in many schedules such as clause 3 of Schedule 10 of the Stonnington Planning Scheme.
2. The Council suggested that the GRZ exemption should be seen as clarifying the earlier exemption in clause 3 of Schedule 10. It referred me to extraneous documents associated with Amendment VC110 that suggested that the Amendment was seeking to 'clarify and provide consistent building height exemptions in all residential zones'. The Council thus saw the Amendment as supporting its interpretation. Conversely, and unsurprisingly, the Applicant suggested that the different wording in the GRZ exemption reflected an intent to give it a new and different meaning to the exemption in clause 3 of Schedule 10.
3. The alternative argument, put in slightly different ways by both the Council and the Applicant, was that great caution should be exercised in using a later provision to reveal the intent and proper interpretation of an earlier provision.[8] The later provision cannot of itself alter the meaning of the earlier provision, properly construed. I consider that this is the better approach in the circumstances of this case. I do not therefore rely upon the wording of the GRZ exemption in Amendment VC110 as a basis for the interpretation that I have reached in relation to the exemption in clause 3 of Schedule 10. At best, the GRZ exemption will provide greater certainty in the future in the circumstances where it applies.
4. The Council raised a secondary argument, to the effect that the GRZ exemption now applied to the Applicant's current proposal and that, having regard to s 7(4) of the Planning and Environment Act 1987,[9] it now took precedence over Schedule 10. I am by no means convinced by the Council's arguments on this issue, either in relation to 'applicable' height control (as between the zone and schedule) or the operation of the transitional provisions. However, I do not need to decide that issue finally, given the limited ambit of the declaration proceeding before me, and the interpretation that I have given to the exemption in clause 3 of Schedule 10.

1. It follows from all of the above that, the maximum building height permissible pursuant to the exemption in clause 3 of Schedule 10 to the General Residential Zone is to be determined on the basis that the height must not exceed the height of either of the immediately adjacent buildings facing the same street. For the development of the land at 5-6 Sydney Street, Prahran, the height must therefore not exceed the height of the adjacent existing 7-storey building at 7-8 Sydney Street, Prahran.
2. I will make a declaration to this effect, in lieu of the declaration sought by the Applicant.

1. As I have foreshadowed, the Second Declaration seeks to ascertain the correct building height of the relevant immediately adjacent building, which is now determined (by reference to the First Declaration) to be the existing 7-storey building at 7-8 Sydney Street, Prahran.
2. The Applicant contends that the height should be calculated to include a roofed plant room and lift overrun that sits above the main roofline on that building, as shown in the photo below.

1. Both the Applicant and the Council were generally agreed as to the starting points to determine this issue.
2. First, the State-wide definition of 'building height' in clause 72 of the planning scheme is 'The vertical distance from natural ground level to the roof or parapet at any point'.[10]
3. Secondly, the parties both accepted and adopted the principles that I had outlined in relation to 'building height' in Aitken Properties Pty Ltd v Hobsons Bay CC.[11]
4. The decision in Aitken considered the definition of 'building height' in relation to the proposed building that was subject to a mandatory or preferred height control, rather than the existing adjacent building through which a maximum building height might be calculated under an exemption. However, the same general principles apply to the calculation of building height in either scenario.
5. In Aitken, the relevant principles were as follows:
   • although a 'building' (as defined) includes any rooftop service installations, the 'building height' (as defined) is calculated from ground level to the roof or parapet. This height calculation thus excludes service installations or other elements above the roof or parapet.
   • to the extent the definition of 'building height' references the vertical distance to the roof at any point, it may therefore include the highest point of any material roofed element.
   • service installations or elements such as a lift overruns, water tanks, screening and solar panels will not therefore form part of the calculation of building height.
   • despite the above, it may be the case that a particular element is of such a size or nature or type of construction, or housed in such a way, that it should be treated as a roofed element in its own right, such that the definition of 'building height' should be referenced to the vertical distance to the roof of that element.
6. It is the application of this last dot point to the facts and circumstances of this case, which is the subject of debate here. In Aitken, I had suggested that what may comprise a roofed element for this purpose was a contextual issue that I did not need to finally resolve, and was primarily a question of fact having regard to the plans for a particular development. Furthermore, in Aitken, I was not dealing specifically with an existing plant room of the type here. The service installation primarily in issue there was a lift overrun. In this case, clause 3 of Schedule 10 deals in part with a lift overrun, by indicating expressly that a lift overrun may exceed the mandatory height requirements by no more than 1.2 metres. This perhaps bolsters the view that a lift overrun of these dimensions, considered in isolation, would not form part of the calculation of 'building height'.
7. The Applicant's simple contention was that the nature of the plant room on the adjoining building at 7-8 Sydney Street was significant enough to demonstrate that it should be treated as a roofed element in its own right. It was contended that the plant room was of relatively significant size, and houses plant, equipment and infrastructure beyond any lift element. Apart from the aerial photograph above, the Tribunal Book contains a series of internal photographs of the plant room,[12] although the Applicant did not specifically refer me to this material. The photos show a concrete block enclosed structure, perhaps about 1.8 or 2 metres in height, containing water, hot water, gas, heating and power infrastructure, pipes and meters. The photos do not show the roof structure of the plant room.
8. The Council contended that there was nothing to suggest that the service installation on the adjacent building at 7-8 Sydney Street was of such a size or nature or type of construction, or housed in such a way, that it should be treated as a roofed element in its own right. The Council appears to have formed this view initially on the basis that the service installation was a lift overrun. It conceded that it was at least arguable, on the Aitken principles, that a large roofed plant room could be considered to be a separate roofed element for the purpose of the calculation of the building height of the adjoining building. This was on the basis that, if this were so, such a structure would also need to be construed as being within the allowable maximum building height for the purpose of any building being developed within the maximum height controls.
9. I agree with both parties that the matter is ultimately to be considered as one of fact and degree, having regard to the specific roofed element. In doing so, one needs to be careful not to take the Aitken principles beyond their intended scope.
10. Going back to the initial starting point, the 'building height' (as defined) is to be calculated from ground level to the roof or parapet. Here, the adjoining building at 7-8 Sydney Street has a clearly defined 'roof', as that term is commonly understood, being the main roof above the habitable floors of the building. In my opinion, the plant room here is still a 'roof-top' structure that, as that term implies, sits on top of what is properly regarded as the roof. It is not of such a size or nature or type of construction, or housed in such a way, that it should be treated as a roofed element in its own right for the purpose of determining what is properly regarded as the 'roof' of the building, or for the purpose of determining the 'building height'. Whilst the height of the plant room, at about 1.8 or 2 metres, is perhaps in the range where it could potentially lead to a contrary contextual view, I am not satisfied that it does so in this case. Nor is the height of the plant room per se a determining factor, as opposed to its contextual relationship with the roof. Although the plant room appears relatively prominent in the aerial photograph, it is set back on the roof such that it would not be a significant element in the streetscape. Whilst it is a relatively large encased structure, it is still typical of roof-top service installations containing lift overruns or other plant and equipment common to a residential apartment building.
11. It follows that the height of the existing building at 7-8 Sydney Street is to be calculated by reference to the height of the main roof of that building, excluding the roof-top plant room and/or lift overrun.
12. I will make a declaration to this effect, in lieu of the declaration sought by the Applicant.

[1] [2015] VCAT 1603

[3] [2017] VCAT 164

[4] For example, following Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, at [4] per French CJ and [47] per Hayne, Heydon, Crennan & Kiefel JJ.

[5] For example, following Melbourne CC v Minister for Planning [2015] VCAT 370, [34]

[6] [2017] VCAT 164, [17]

[7] Omitting other qualifications and exemptions not relevant in this proceeding.

[8] On this issue, the Applicant referred me to Deputy Federal Commissioner of Taxes (South Australia) v Elders Trustee and Executor Co Ltd [1936] HCA 64; (1936) 57 CLR 610, 625-6, and the Council cited Interlego AG v Croner Trading Pty Ltd [1992] FCA 624; (1992) 39 FCR 348, 382.

[9] A State-wide provision overrides a local provision, to the extent of any inconsistency.

[10] For the record I note that, in its written submissions, the Applicant had mistakenly included the planning scheme definition of 'mean building height' rather than 'building height'. Nothing turns on this.

[11] [2016] VCAT 1484, Opinion on Question of Law' at Appendix A