Wunsch and [Nine] Others v Rockdale City Council and Another

Land and Environment Court (NSW)|1997-09-19|Before: Talbot J, Peterson J

CITATION : Wunsch and [Nine] Others v Rockdale City Council and Another [2002] NSWLEC 103 APPLICANTS Bertrum Antonius Wunsch and Nine Others

FIRST RESPONDENT PARTIES : Rockdale City Council

SECOND RESPONDENT Mahmoud Mohanna

APPLICANTS Mr A A Hyam (Barrister) SOLICITORS Burrell Solicitors

FIRST RESPONDENT Mr C W McEwen (Barrister) LEGAL REPRESENTATIVES: SOLICITORS Abbott Tout

SECOND RESPONDENT Mr T J Moore (Barrister) SOLICITORS Xenos Jordan Solicitors

IN THE LAND AND Matter No. 40041 of 2002 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 28 June 2002

Bertrum Antonius Wunsch and Nine Others Applicants v Rockdale City Council First Respondent Mahmoud Mohanna Second Respondent

On 13 February 2002 the first respondent, Rockdale City Council ("the council"), determined development application No. 291/02 for the construction of three villas at No. 2 Toohey Crescent, Bexley by the grant of consent, subject to conditions. A subsequent rescission motion failed.

At its meeting on 30 January 2002 the council had resolved to defer consideration of the development application to seek legal advice from its solicitors in relation to the definition of "attic space" in the council's Development Control Plan in regards to the calculation of gross floor area.

When the hearing of the case commenced on 19 June 2001 it quickly became apparent that the applicant's claim for relief was not based on strong grounds and likely to fail. Mr Burrell, who appeared for the applicants, applied for an adjournment, which was granted on terms that his clients pay the costs thrown away on that day. On the second day, Mr Hyam of counsel appeared for the applicants who were granted leave to rely on a further amended application class 4 and further amended points of claim by which it is alleged the proposed development is a two-storey medium density housing development which is prohibited in the zone. Although other grounds are outlined in the further amended points of claim, Mr Hyam elected to rely on only one.

The second respondent is the person entitled to act on the development application.

Both respondents contend that the development is permissible with development consent in Zone 2(a) - Low Density Residential zone as "medium density house (single storey)" .

The issue between the parties is now confined to whether on a perusal of the approved plans, the second level of the building is a storey. The respondents argue that as the upper space is an attic it is excluded from the definition of a storey and that accordingly, the development is permissible with consent in the zone.

Rockdale Local Environmental Plan 2000 ("the Rockdale LEP") contains the following definitions:- storey means the space within a building between one floor level and the floor level next above or, if there is no floor level above, the ceiling or roof above, but does not include:

(b) attic space which is part of the dwelling immediately below and is incapable of being used as a separate dwelling, or

There is a separate definition of an attic as follows:-

attic means a habitable space within a building, contained wholly within the roof pitch, that is not immediately enclosed by vertical external walls such as gable ends and that may contain dormer windows.

There is a general consensus about how the plans are to be read. The major contention is whether, on a proper reading of those plans, the habitable space at the upper level is "contained wholly within the roof pitch" . The applicants do not seek to contend that the space is "immediately enclosed by vertical external walls" .

There is controversy over the proper meaning to be ascribed to the word "pitch" in the context of the definition of an attic as used in conjunction with the word "roof" .

After noting that no part of any habitable space is immediately enclosed by vertical external walls on the second level, Mr McEwen takes two alternative positions, on behalf of the council, as being an acceptable explanation of what is meant by the expression "roof pitch" as follows:- (1) It is the area covered by the angled lines of the actual roof; or

(2) The line of the roof extending from the ridge to the furthest prolongation along the angle of the roof.

Mr Moore, who appears for the second respondent, refers to a number of sources for an understanding of the meaning of "pitch" as follows:- (1) Definitions 3(a) and 3(b) in the Australian Oxford Dictionary adopt a meaning of the "steepness of a slope" and "the degree of such a pitch";

(2) The architectural meaning ascribed by the Macquarie Dictionary describes "pitch" as "the slope or steepness of a roof" ;

(3) The second edition of the Oxford English Dictionary includes a meaning of "to incline or slope forwards and downwards" ;

(4) In WorkCover Authority of New South Wales (Inspector Hughes) v A.V. Jennings Limited T/as A.V. Jennings (Peterson J, NSWIRComm, 19 September 1997, unreported), the Industrial Relations Commission of New South Wales referred to a roof which involved " a steep pitch, of approximately 33 degrees, and was tiled with glazed terracotta tiles" .

(5) In Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192, Barwick CJ commented that the "pitch of the gables was sufficient to make it difficult for a man to stand on the roof without supporting himself by some means". Later on in the judgment he referred to work methods "to be employed on a roof of this pitch" ;

(6) In the definition of "storey" in the now repealed North Sydney Local Environmental Plan 1989 an attic was not included where it is contained wholly within the roof space where the roof has a maximum pitch of 36 degrees; and;

(7) South Sydney Development Control Plan 1997 refers to attics built with a certain "roof angle or pitch" . 13. It is Mr Moore's contention that the definition of "attic" in the Rockdale LEP is clearly using the word "pitch" as a noun and hence, the slope of the roof rather than, as the applicant contends, the point of departure of the roof. Although, arguably, the space of an attic could extend to any point along the line of the slope of the roof, Mr Moore points out that there is a limit on how far the space can extend outside the roof structure by requiring that it is not immediately enclosed by vertical external walls.

If the concept described by Mr Moore is not accepted and the concept of within the roof pitch means within the roof space, then he contends that would include an area bounded by a line between the ridge and the eaves of the roof on each side of the roof. The applicant recognises that the extent of external walls as shown on the plan to be below the commencement of the eaves is not sufficient to be in breach of the definition.

Mr Hyam refutes Mr McEwen's reliance upon any area under or within the roof. This, Mr Hyam says, could lead to a structure extending over several stories wherein internal walls are used to limit the habitable space. Rather than pitch, in the context of the Rockdale LEP meaning the angle of the roof, Mr Hyam, relying on The New Shorter Oxford Dictionary, contends it is the point of construction from which the roof is pitched. This approach necessarily excludes that part of the roof structure which extends downwards from and beyond the extreme outside point of support for the roof. In other words, it excludes the part of the roof lying below the lowest point of support for the roof being generally the area between that point and the outer extremity of the eaves. According to My Hyam no pitch occurs until the roof springs from a support, generally a wall.

To demonstrate that the word "pitch" can be equally construed as a verb or a noun, Mr Hyam uses alternatives taken from the same dictionaries as those used by Mr Moore to identify the action of setting up, erecting or fixing in the sense more commonly used in the context of a tent or a camp (see also Pipheron Pty Ltd v South Sydney City Council [2000] NSWLEC 65, unreported at par 39). If Mr Hyam is correct then the lowest part of the habitable space at the upper level would be below the roof pitch, as he determines it, and hence falls outside the definition of "attic" .

Following the approach taken by Bignold J in Carey v North Sydney Council [1999] NSWLEC 174, unreported, Mr Hyam says that exclusion (b) from the definition of "storey" in the Rockdale LEP must be read strictly and in conjunction with the definition of "attic" so as not to detract from the concept of a single storey building.

It can be seen from the above that the concepts of the habitable space which is contained within an attic in accordance with the definition range from that space contained in a triangular area which exists above the line between the points of the intersection of an external wall of the building and the roof up to the ridge to the whole of the space contained within the roof itself and even within the prolongation of the line of the roof even beyond the eaves down to the ground. It is unlikely that the argument which extends the space beyond an area which sits immediately below any part of the roof structure itself will succeed. Nevertheless a number of arguable concepts have been developed by the respective parties.

There is a distinction between the task of characterisation of a development and the establishment of a jurisdictional fact. In Londish v Knox Grammar School and Others (1997) 97 LGERA 1, Stein JA, with whom Mason P and Meagher JA agreed, held that it is a question of law whether the primary facts found necessarily fit within a statutory description ( Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156). Furthermore, relying on Hope v The Council of the City of Bathurst (1981) 144 CLR 1, although more than one conclusion might reasonably have been reached by a decision-maker, an incorrect finding will not involve an error of law provided that the decision to categorise the development was one which was reasonably open to the council. In such a case, Stein JA explained, that the council's decision is not reviewable by the Court. Subsequently, in Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55, the Chief Justice identified the issue in Londish as "purely a question of characterisation" . His Honour went on at par 28 as follows:- The Court applied the well-established principle that whether the matter under consideration fell within the meaning of an ordinary English expression was a question of fact. To say that the issue is whether or not a proposal answers a specific statutory description, identifies the issue as one of fact…

Londish decided that a finding of fact, being the determination of whether primary facts answer a statutory description, in the context there under consideration, was not a finding of jurisdictional fact.

Taking the recognised purposive approach to the construction of the provisions of the Rockdale LEP, it is relevant to note the objectives of the zone are, inter alia, to maintain low density and single-storey medium density housing which does not adversely impact on the amenity of the locality. It is appropriate in those circumstances to condition the definition of "storey" in the context of an intention to maintain an appearance of low density housing comprising a single storey. This is achieved in the case of an attic by requiring that it be effectively subsumed in the roof structure, thereby not giving the impression of a double storey building. The proviso that the habitable space of an attic must not be immediately enclosed by vertical external walls is a reflection of the objective to maintain any upper level space within the sloping structure comprising the roof. As I have said, the applicants do not take issue with the minor containment by a vertical external wall in some cases but rather rely on the more demonstrative non-compliance if the area lying below the line of the supports for the roof is taken into account.

Although the parties are at issue over the meaning of the words "roof pitch" there is no suggestion that the meaning to be adopted should be other than an ordinary meaning of those words. The ordinary meaning of a word, or its non-legal technical meaning, is a question of fact (see authorities cited in Collector of Customs v Agfa-Gevaert Limited (1995-1996) 186 CLR 389).

It was, in the Court's opinion, open for the council to determine that the roof pitch is a reference to the line of the angle of the roof so far as the roof physically extends. Even though the Court may prefer the meaning attributed to the expression by the applicants, whilever it remains open for the council to adopt a different construction, the decision to regard the upper habitable space as an attic within the definition in the Rockdale LEP will not be reviewed by the Court in class 4 proceedings.

Given there is no issue about the space being enclosed by vertical external walls, the Court is satisfied that the plans demonstrate that the upper level of the proposed units can reasonably be regarded as an attic within the statutory definition. Hence is not a storey so that the development is permissible with development consent as medium density housing (single-storey).

In those circumstances the respondents are entitled to judgment in their favour and the application will be dismissed.

It is agreed between the parties that in the event the applicants are unsuccessful there should be an order for costs that follow the event.

The Court makes the following orders:- (1) Application dismissed.

(2) The applicants pay the costs of the respondents. (3) The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

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Judgment (46 paragraphs)

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Cases Cited (7)