1. This is an application under s. 149A Planning and Environment Act 1987 for a declaration as to the proper construction of clause 32.09-8 Yarra Planning Scheme.
2. The application as amended at the outset of the hearing seeks a declaration that on its proper construction clause 32.09-8 of the planning scheme permits a building or an extension to a building that is no higher than the highest building immediately adjacent to the subject land facing the same street.

1. The applicant is seeking to redevelop the two storey dwelling at 75 Webb Street, Fitzroy. It is not yet clear what the height of the proposed redevelopment as defined by the Yarra Planning Scheme will be. For the purposes of the present application it was assumed that the new dwelling will be higher than the adjoining dwelling at 73 Webb Street but not as high as the adjoining dwelling at 77 Webb Street.

1. Clause 32.09-8 Yarra Planning Scheme relevantly provides as follows:

32.09-8 Maximum building height requirement for a dwelling or residential building

The maximum height of a building used for the purpose of a dwelling or residential building must not exceed the building height specified in a schedule to this zone. If no building height is specified, the height of a building must not exceed 8 metres ...

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

1. In the present case no building height is specified in the schedule so the mandatory height limit of 8 metres applies unless the proposal comes within one of the exemptions. The relevant exemption is set out above.

1. The question raised for determination is whether the height limit under the exemption is set by the higher (or highest) immediately adjacent building, or whether it is set by reference to all immediately adjacent buildings, which would establish the lowest adjacent building as the benchmark.

1. The Tribunal considers that the plain and ordinary meaning of the words used in the exemption confine it to application when the proposed building or extension does not exceed the height of either, or any, immediately adjacent buildings facing the same street. This is no more or less than what the provision says.
2. The applicant called in aid s. 35(a) Interpretation of Legislation Act 1984 and the decision of Dawson J in Mills v Meeking [1], incidentally a dissenting judgement although the principles stated are not in doubt. Both the Act and the judgment support a purposive construction of statutory instruments. There are two responses to this.
3. First, the aids to construction are primarily to be used when the instrument under consideration exhibits some ambiguity or lends itself to more than one interpretation. In the present case the provision in question is clear and unambiguous. It refers to "immediately adjacent buildings facing the same street". The reference is to buildings, plural, in contrast to the reference to a building, singular, in other parts of clause 32.09-8. This evinces a contrary intention sufficient to displace the inclusion of singular with plural and vice versa created by s. 31 Interpretation of Legislation Act 1984.
4. Secondly, it is far from clear that the construction contended for by the applicant would promote the purposes of clause 32.09. The purposes of the Neighbourhood Residential Zone are to limit opportunities for residential development and conserve existing neighbourhood character. These purposes are better served by a construction that discourages rather than enables increases in the height of new or existing buildings. A delineation of the streetscape by reference to the height of existing buildings rather than a single building which, considered in isolation, may be out of character is more likely to promote this purpose.

1. Whether the proposed redevelopment falls within the exemption as construed by the Tribunal is a question of fact that does not fall for consideration in this proceeding. The difference in the height of the buildings in question is not substantial, and the determination of height should be a relatively straightforward matter. It can be determined by survey if necessary.

1. For these reasons the application for a declaration is dismissed.

[1] [1990] HCA 6; (1990) 169 CLR 214,