(b) The Council was mislead by Mr Thomas stating that the side setback control was 900mm when in fact the control in s 5.3 of PDCP further stated "side setbacks to the front portion of the site is to be not less than 900mm. Where the house extends further towards the rear of the block than neighbouring dwellings the set back is to be increased to maintain solar access". Accordingly, the Council should have considered whether the side setbacks should be increased beyond 900mm where the proposed dwelling extended further towards the rear of the block than Mr Walsh's existing dwelling.
Disabled access
20 Mr Walsh claimed that the Council failed to consider the relevant matter of the impact of excavation of the public road reserve for construction of the driveway on disabled access. Such a matter was required to be considered by the Council because of the Disability Discrimination Act 1992 (Cth) and s 4.3 of PDCP.
21 I will deal with each of these challenges.
Height
22 As I have noted, Mr Walsh put his challenge on the ground of height in alternative ways depending on whether the definition of storey in the dictionary to the PLEP applies to cl 39(1) of PLEP. It is therefore necessary to deal first with the meaning of the word "storey" cl 39(1) of PLEP.
23 In my opinion, the word "storeys" in Clause 39(1)(a) bears its defined meaning in the dictionary to the PLEP. Clause 10(1) of PLEP provides that:
"A term defined in the dictionary at the end of this plan has the same meaning when used in this plan".
24 Clause 10(1) does not include a phrase such as "unless the contrary intention" applies, although such a phrase is often implied: Buresti v Beveridge (1990) 158 ALR 445 at 447. A court construing a word or phrase which is expressly defined should commence its enquiry by assuming that the drafter intended the word or phrase to have its defined meaning. Only rarely will the court be justified in departing from that meaning: Gidaro v Secretary, Department of Social Security (1988) 154 ALR 550 at 561.
25 The definition of storey in the dictionary to the PLEP is:
" Storey means the space within a building between one floor level and the floor level next above or, if there is no floor level next above, the ceiling or roof above but does not include:
(a) space used for car parking, laundries or store rooms, if the ceiling space does not protrude more than 1.2 metres as measured vertically above the natural ground level immediately below, or
(b) attic space that is part of the dwelling unit immediately below and is incapable of being used as a separate dwelling unit."
26 There is nothing in the context of cl 39(1)(a) which indicates a contrary intention of the drafter that storey should not bear its defined meaning.
27 The words "above ground level" in cl 39(1)(a) immediately after the word "storeys" does not provide a contrary intention. These words have work to do independently of the word "storeys". They focus attention on whether, if a building has more than two storeys, the extra storey or storeys is or are, above ground level. It is not necessary for me to decide whether the words "above ground level" refer to natural ground level or finished ground level. (Although I note that Jagot J in Makhoul v Parramatta City Council [2006] NSWLEC 386 (21 June 2006) at [41] held that ground level in Clause 39 means the finished or post development ground level.)
28 For example, a single dwelling may have three storeys because one of the storeys is a basement which is not excluded from the definition of storey by paragraph (a) of the exceptions. An example might be because a basement space is used for a purpose other than carparking, laundries or store rooms, these being the only purposes which a basement space can be used to fall within the exception in paragraph (a) of the definition of storey. If the basement, although a storey, is not above ground level, the building would nevertheless comply with the development standard in cl 39(1)(a) of PLEP. However, if any part of the basement storey is above ground level, the building would not comply with the development standard. The words "above ground level" immediately after the word "storeys" therefore have work to do. They do not demand that the preceding word "storeys" has a meaning which is different to its defined meaning in the dictionary to PLEP.
29 I also note that Jagot J held in Makhoul v Parramatta City Council [2006] NSWLEC 386 (21 June 2006) at [29] that the definition of "storey" in the dictionary is "the criterion of reference for the development standard in cl 39" and see also at [41].
30 On this basis, the applicant's alternative argument, based on the word "storeys" in cl 39(1)(a) of PLEP not having its defined meaning, must be rejected.
31 On the applicant's first argument, therefore, only part of the basement has above it two storeys. This includes the space designated in the basement for carparking and the space designated as "equipements (sic) & plant room". The evidence establishes that no part of the basement protrudes more than 1.2 m as measured vertically above the natural ground level immediately below. Accordingly, the space in the basement used for carparking falls within the exception of paragraph (a) to the definition of storey and is excluded from being counted as a storey.
32 This leaves the space in the basement designated as "equipements (sic) & plant room". That room is not a space used for carparking or laundry, being two of the uses specified in paragraph (a) of the exceptions. The question is whether that space could be described as being used for "store rooms" being the third of the specified uses in the exception of paragraph (a).
33 The word "store rooms" is not defined in PLEP. It bears its ordinary meaning. The Macquarie Dictionary defines store room as:
"1. A room in which stores are kept. 2. Room or space for storage."
34 The description of the space as "equipements (sic) & plant room" fixes the use as a room for plant and equipment. "Plant" refers to equipment that can not only be fixtures but can also be machinery and tools necessary to carry on a particular operation: see Macquarie Dictionary definition. Equipment itself includes "a collection of necessary implements (such as tools)": Macquarie Dictionary.
35 Plant and equipment are capable of being stored in a room. Accordingly, the "equipments (sic) & plant room" can fall within the description of a store room. The space used for equipment and plant room is therefore within the exception in paragraph (a) to the definition of storey and is excluded from constituting a storey.
36 The result is that the proposed building is only two storeys in height and does not exceed the development standard in cl 39(1)(a) of PLEP. Mr Walsh's challenge on this ground therefore fails.
FSR
37 The phrase "floor space ratio" in cl 40(1) is defined in the dictionary to PLEP. Mr Walsh accepts that in this case the defined meaning in the dictionary is the meaning that the phrase "floor space ratio" in cl 40(1) bears. The defined meaning is:
" Floor space ratio, in relation to a building, means the ratio of the floor space area of the building to the area of the allotment on which the building is or is proposed to be erected."
38 The "floor space area of a building" is in turn defined in the dictionary to be:
" Floor space area of a building means the sum of the gross horizontal areas of each floor of the building contained within the inner faces of the outer walls measured at a height of 1.5 metres above the floor, including the space occupied by internal walls, staircase, lobbies, corridors and toilets, but not including:
(a) the horizontal cross section of lift shafts and vertical service ducts measured between the wall faces internal to the lift shaft or duct, or
(b) any space permanently set aside within the building for basement parking, other than spaces used for public car parking, and for the unloading or loading of vehicles, including ramps or other means of access to it, or
(c) any space for the accommodation of mechanical or electrical plant or equipment servicing the building, or
(d) any terraces and balconies with walls less than 1.5 metres high, or
(e) attic rooms, or
(f) in the case of single dwellings, one single car space with the dimension of 1.30metres in width and 5.5 metres in length, or
(g) any space permanently set aside within basement carparking areas for storage, garbage rooms and the like."
39 Finally, the word "floor" is defined in the dictionary to mean:
" Floor means a space within a building which is situated between one floor level and the floor level above or, if there is no floor above, the ceiling or roof above."
40 The last two definitions of "floor" and "floor space area of a building" are fatal to Mr Walsh's argument that each of the areas that he nominated were wrongly excluded from the calculation of the floor space ratio.
41 First, the majority of the areas do not have any floor, ceiling or roof above. On the ground floor, the deck around the swimming pool has only a small area covered by either the first floor or the roof (7.88m2). The front terrace has a slightly larger, but still relatively small, area that is covered by the first floor or the roof (17.42m2). However, the majority of both the pool area and the front terrace are without a floor, ceiling or roof.
42 On the first floor, the two voids within the building do have a ceiling above, but the floor area underneath this ceiling has already been taken into account in the calculation of the floor space ratio. The applicant sought to take the area into account again by projecting a hypothetical floor through the void at the first floor level. The definition of floor does not permit this approach. Finally, the balcony on the eastern side is open to the sky except for the small overhang of the roof on two sides (4.31m2).
43 The parts of the areas nominated by Mr Walsh which do not have a floor, ceiling or roof above cannot be considered to be a floor having regard to the definition of floor.
44 Secondly, even those parts of the nominated areas that do have a floor, roof or ceiling above still cannot be considered to be "within a building" or "contained within the inner faces of the outer walls" of a building.
45 The deck and planter bed around the pool are outside the building. The outer wall of the building is to the north of the deck, pool and planter bed. The fence around the outside of the pool, installed for safety and privacy reasons, regardless of its height, is not the outer wall of the building. Equally, the front terrace, although located on top of the basement, is not within the building. The outer walls of the building are to the north and east of the front terrace. The wall at the southern edge of the terrace, installed for safety and privacy reasons, regardless of its height, is not the outer wall of the building. The first floor and roof that project for a small distance over the northern side of the terrace do not connect with the wall on the southern edge of the terrace. That wall is a free standing feature.
46 Accordingly, these areas cannot be considered to be within the building and therefore cannot be counted as either a floor or part of the floor space area of the building.
47 Finally, for that part of the balcony on the first floor that is covered by the overhanging roof, it would be excluded by the exception in paragraph (d) of the definition of "floor space area of a building". The balcony has a balustrade but it is not a wall that is equal to or greater than 1.5 metres high. This area is therefore excluded from the floor space area of the building.
48 For these reasons, each of the areas nominated by Mr Walsh were properly excluded from the calculation of floor space ratio.
49 Mr Walsh's other area was in the basement. Mr Walsh said that, on a proper construction of the exceptions in paragraphs (b) and (f) of the definition of "floor space area of a building", paragraph (b) does not apply to single dwellings and instead paragraph (g) covers the field and is the exclusive entitlement to exclude space for carparking for single dwellings. I reject this construction of the definition of "floor space area of a building". There is no warrant to read paragraph (b) down. It applies to all basement parking regardless of the use of the building above the basement, whether a single dwelling, a residential flat building, high density housing or any other use.
50 The evident purpose of differentiating in paragraphs (b) and (g) between parking in basements and otherwise is to discourage using the building above ground level for parking for more than one vehicle. Carparking in a basement of a building does not add to the bulk and scale of the building, an objective of floor space controls. Carparking above ground level does add to the bulk and scale. An owner who wishes to have more than one carparking space will therefore be encouraged to place the multiple carparking in a basement because that will be excluded from the floor space area. If multiple carparking spaces were to be provided in the building above ground level, only one carparking space would be excluded from the carparking space area and the rest would have to be counted as part of the floor space area and hence reduce the floor space area available for other residential purposes.
51 The result is that Mr Walsh's challenge on the ground of non-compliance with the FSR development standard in cl 40 fails.
Overshadowing
52 The Council undoubtedly did consider the impact of overshadowing caused by the proposed dwelling on the adjoining property of Mr Walsh. The issue was addressed in the shadow diagrams provided to the Council by both Dr Alam and by Mr Walsh, the statement of environmental effects by Dr Alam, the objections by Mr Walsh's planning consultant, Mr Danny Jones, and the council officers reports of 17 October and 12 December 2005.
53 Nevertheless, Mr Walsh's claim is that such consideration miscarried, first because the Council did not know the location of habitable rooms and their windows on the northern and eastern elevations of Mr Walsh's existing dwelling, including a sunroom extension on the eastern side, and secondly, because the Council did not consider the interrelationship of the side setback controls in PDCP and the overshadowing.
54 I reject this claim. It is important to remember the nature and scope of the review that is permissible of a decision on the ground of failure to consider a relevant matter.
55 Although the applicant asserted that it was not impermissibly reviewing the merits of the Council's decision and its fact finding on the issue of overshadowing, the respects upon which the applicant claims the Council's decision miscarried does precisely that.
56 An applicant dissatisfied with the merit assessment and outcome of an exercise of discretionary power by a consent authority make seek to disguise a challenge on those merits in terms of recognised grounds of judicial review, such as the relevant considerations grounds. A court should see through the disguise. The court must avoid the temptation to express the conclusion in terms of a recognised ground of review while in truth making a decision on the merits: Bruce v Cole (1998) 45 NSWLR 163 at 184.
57 The formulation of "proper genuine and realistic consideration", invoked by Mr Walsh to describe the consideration required from the Council in his submission, has been criticised by the courts. Too ready an employment of the test causes the category of judicial review of failure to consider relevant matters to elide into a review on the merits or an appeal on the facts: Bruce v Cole (1998) 45 NSWLR 163 at 186; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62]; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 297 [73], [75], 298 [79].
58 It is not for a party affected by a decision, or a reviewing court to make an exhaustive list of the matters which a decision maker might conceivably regard as relevant then attack the decision on the ground that a particular one of them was not specifically taken into account: Elliott v Southwark London Borough Council [1976] 1 WLR 499 at 507; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Akpan v Minister for Immigration Ethnic Affairs (1982) 58 FLR 47 at 51, 52 and Noble v Cowra Shire Council (2001) 114 LGERA 440, 445 [16].
59 The considerations that are relevant are to be identified "primarily, perhaps even entirely", by reference to the statute imposing the power on the decision maker rather than the particular facts of the case that the decision maker is called on to consider: Minister for Immigration and Multi-Cultural Affairs v Yusuf (2001) 206 CLR 323 at 347-348 [73] and see also Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579 [195].
60 The level of particularity with which a matter is identified in the statute may be significant where the failure complained of is not a failure to consider a certain subject matter, but a failure to make some enquiry about facts said to be relevant to that subject matter. For the applicant to succeed, the statute must expressly or impliedly oblige the decision maker to enquire and consider the subject matter at the level of particularity involved in the applicant's submission: Foster v Minister for Customs (2000) 200 CLR 442 at 452 [23].
61 The relevant considerations ground is concerned essentially with whether the decision maker has properly applied the law. It is not a ground that is essentially concerned with the process of making the particular findings of facts upon which the decision maker acts: Minister for Immigration and Multi-Cultural Affairs v Yusuf (2001) 206 CLR 323 at 348 [74].
62 An applicant who undertakes to establish that an administrative decision maker improperly exercised power should not be permitted under colour of doing so to enter upon an examination of the correctness of the decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or the regularity or irregularity of the manner in which the decision maker has proceeded. The correctness or incorrectness of the conclusion reached by the decision maker is entirely beside the question: R v War Pensions Entitlement Appeal Tribunal; Exparte Bott (1933) 50 CLR 228 at 242; Re Queensland Electricity Commission; Exparte Electrical Trades Union of Australia (1987) 72 ALR 1 at 4-5.
63 Proper consideration of a relevant matter does not demand factual correctness. It is wrong to equate relevancy with factual correctness: Akpan v Minister for Immigration and Ethnic Affairs (1982) 58 FLR 47 at 50. A wrong assessment of the consideration the decision maker takes into account is not a reviewable error of law: Brunetto v Collector of Customs (1984) 4 FCR 92 at 97-98.
64 In this case, the evidence does not support the Court drawing a finding that the Council failed to consider the facts concerning location of the habitable rooms or their windows or the impact overshadowing on those habitable rooms of Mr Walsh's dwelling. Although the precise location of the habitable rooms and their windows of Mr Walsh's existing dwelling was not expressly specified in the Council officer's report of 21 November 2005 and 12 December 2005, nevertheless having regard to: