Saggers and Bell v Valtone Pty Limited and The Darling Harbour Authority

The dispute arises because "commercial facilities" is not defined in the Act, Regulations or Development Plan. The draftsman considered it appropriate to include some definitions in the said Development Plan, and did not exercise the power available (Reg. 4(1)(b)) to incorporate appropriate definitions in instruments such as the Model Provisions prescribed under the E.P.& A. Act. One such definition is "commercial premises". The maker of the Development Plan could have, but did not, employ that long established and well understood definition of "commercial premises" if it was intended to permit the construction of all types of office accommodation in the Darling Harbour Redevelopment Area.

It is a term well known to planners and consent authorities (for at least thirty years), and the makers of environmental planning instruments under the E.P.& A. Act. Such a planning instrument would apply to the land except for the exclusions effected by s.59 of the Act. One inference is that the draftsman deliberately intended "commercial facilities" to mean something different from that comprehended by the wide defined meaning of "commercial premises" usually found in environmental planning instruments.

I have never known an office building to be described, either by the ordinary use of the English language or as a technical term, as "commercial facilities". The words "commercial" and "facilities" as used in Schedule 1 are ordinary English words. It follows that their meaning is a question of fact and not of law, which may be resolved with the assistance of dictionaries. The Shorter Oxford English Dictionary defines "commercial" as of the nature of commerce or engaged in commerce, and "commerce" means the interchange of merchandise and the buying and selling together. A "facility" promotes or makes easier the performance of an activity and it may, in an appropriate context, include a building or complex designed for such activity (see the Macquarie Dictionary).

In my opinion the intention of the draftsman of this Development Plan in the use of such an unusual term in a planning instrument can be found in the objects of the Plan set out in cl.3; i.e. it is to "assist the Authority" in: |CF2.|PSI

Harbour area as part of the State's b) encouraging participation by other persons in educational, recreational, entertainment, area; and

"'Commercial premises' means a building or place commercial purposes, but does not include a this clause or a building or place used for a clause;"|CF1.|PSO

Most "commercial" purposes such as shops, motor showrooms and roadside stalls are usually separately defined in the same definition clause. If not so separately defined (as in this Development Plan), the definition gives "commercial premises" an extremely wide meaning. If the defined term "commercial premises" had been employed it would have permitted approval of all types of office accommodation, including that for public authorities.

I do not think that the draftsman thought that in the ordinary use of the English language office accommodation would be described as "commercial facilities". I am also aided by the fact that the draftsman therefore made express provision for office accommodation, but only such for public authorities, as a kind of development. I take heed of the many cases containing warnings against excessive reliance on the aid to construction known to lawyers by the shorthand of "expressio unius"; see, for example, Jesasu Pty Limited v. Minister for Mineral Resources, [1987] 1 N.S.W.L.R. 110, at 114. I also reject the submission that its inclusion was merely to distinguish public authority office accommodation from that of a commercial nature.

In my opinion, if the respondents are correct as to the meaning of "commercial facilities", the draftsman employed a term so wide as to permit virtually all trades, occupations and businesses, and one so unfamiliar as to make the draft scheme grossly confusing and uncertain when exhibited for public scrutiny. The importance of such public participation in the making of a development plan was emphasised in the Second Reading Speech of the Premier. I have no doubt that, on exhibition of the draft Development Plan, no member of the public, nor relevant public authorities such as the Sydney City Council or the Department of Environment and Planning, or even the draftsman or the Minister, understood a reference to "commercial facilities" as empowering the Authority to grant a permit for a tower block of private office accommodation as part of the Darling Harbour Redevelopment. This is also pointed up by the total absence in the Development Plan of usual development standards for office buildings such as height and floor space ratio limitations.

It is clear that it is now the intention of the Authority to permit the construction of private office accommodation on the land pursuant to the Development Plan. In my opinion, unless and until a plan to amend the Development Plan in clear and unambiguous terms is exhibited and made pursuant to the provisions of Part IV of the Act, the construction of the proposed office accommodation tower is not development for which a permit might be granted pursuant to cl.6 thereof.

The Authority, however, has not yet granted a permit for the use, construction or operation on the land of the overall development including the thirty-six floor tower for use as private office space. I am prepared to assume that such accommodation will also be constructed to the standards required for accommodation for public authorities. It is not, however, being constructed or to be operated for use by public authorities within the meaning of Schedule 1. I am satisfied on the evidence that the Authority has approved the concept of such tower "in principle" (to adopt the words of Valtone's project/design manager), and that it is likely to approve a permit to carry out development on the land which includes office accommodation not limited for use by public authorities.

In my judgment, the applicants are therefore entitled to the declaration sought as to the power of the Authority to grant a permit for the proposed office tower on the land.

It is common ground that to determine that which was permitted by the permit granted by the Authority on 21st June, 1988 must be found from an examination of the documents referred to in the said conditions imposed thereon, and the documents accompanying the application.

In the said assessment of environmental effects the proposed works are said to |CF2.|PSI"represent the preliminary stage of the Studio City development which forms part of the overall development plan for the Darling Harbour Redevelopment Area"|CF1.|PSO, but elsewhere that |CF2.|PSI"this application does not deal with the erection of the Studio City building, but merely site establishment and investigation for works associated with the demolition of the existing improvements on the site excluding the street facades".|CF1.|PSO

The scope of the works is described in the letter of 17th June, 1988 - |CF2.|PSI

Prior to commencing the following works, site establishment will be carried out, including provision and installation within the site of all necessary accommodation and support facilities.

To satisfy mandatory safety and security requirements, all roller shutters and other doors on the perimeter of the site will be securely fastened. One access and egress point to the site will be established in Quay Street.

After the site has been secured, site investigation will be carried out on the condition of the existing buildings, the nature of sub-soil materials, existing services to be terminated, and appropriate methods for retaining the existing perimeter facades.

The existing roof sheeting comprises both corrugated iron and asbestos cement materials." |CF1.|PSO

It is quite clear that the removal of existing roof sheeting is "demolition" within the definition in cl.5 of the Development Plan, and that a permit from the Authority is required thereunder. It is common ground that a permit only for demolition granted pursuant to cl.8 of the Development Plan does not have to be for development of a kind described in Schedule 1.

The application was the subject of a report to the Authority in which it was advised that the "major permit application for Studio City" is expected to be submitted for approval of the Authority in August, and that "in the interim, approval is sought for preliminary works - hoarding and asbestos removal". The structural hoarding system application of 14th June was withdrawn by the letter of 17th June, and is not referred to in the subject permit.

The applicants claim that the notice of approval grants two permits; i.e. a permit to carry out development and a permit to demolish part of the building. The carrying out of "development" is alleged to include the "erection" of buildings, i.e. the "placing" of amenities buildings on the land (s.3(3)(a)), the use of such buildings (s.3(3)(d)); structural alterations, i.e. welding of roller doors and provision of services (s.3(3)(a)); work, i.e. digging for site investigation (3(3)(b)); and land use, i.e. site establishment for the Studio City project (3(3)(d)).

The subject application was made in accordance with a programme agreed at a meeting between Valtone's project manager and the Authority on 14th June, 1988. The application is described therein as for "initial works, namely removal of asbestos and erection of hoardings". In the programme the next permit application will cover (i) demolition and (ii) bulk excavation. I note that there could be no question that such bulk excavation is development for which a permit would be required pursuant to cl.6 of the Development Plan.

All of the activities described in the application are not, in my opinion, development; e.g. "site investigation". Those which might otherwise come within such definition are, in my judgment, activities necessary to carry out demolition. Notwithstanding the possible overlapping of the use of amenities buildings and some site establishment, investigation and closure activities in the application which might also relate to the overall development, I am satisfied that the subject permit approved only the necessary works for the removal of asbestos sheeting; i.e. a permit pursuant to cl.8 of the Development Plan for the demolition of part of the building on the land. The carrying out of development, including a tower providing private office accommodation, has not yet been and might not be approved by a permit pursuant to cl.6 of the Development Plan. I therefore reject submissions that the permit granted by the Authority by notice dated 21st June, 1988 for demolition of part of the building on the land is void.

2. I declare that the development known as "Studio City Project" (being the development plans which appear as an exhibit to the agreement for lease made between the Respondents and the Sydney Market Authority on or about 25 January, 1988) ("the development") may not lawfully be carried out upon the land comprised in Certificates of Title Folio Identifiers 1/562950, 2/562950 and 3/562950 ("the land").

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