Australand Holdings Limited v Parramatta City Council
[2003] NSWLEC 229
•10/10/2003
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Reported Decision: (2003) 128 LGERA 411
Land and Environment Court
of New South Wales
CITATION: Australand Holdings Limited v Parramatta City Council [2003] NSWLEC 229 PARTIES: APPLICANT
RESPONDENT
Australand Holdings Limited
Parramatta City CouncilFILE NUMBER(S): 10379 of 2003 CORAM: Cowdroy J KEY ISSUES: Question of Law :- meaning of "natural ground level" - whether "natural ground level" is ground level prior to development - development application for multi-unit housing - interpretation to meet aims and objectives of local environmental plan LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 5, s 25(3)
Interpretation Act 1987, s 33, s 34
Parramatta Development Control Plan 2001
Parramatta Local Environmental Plan 2001CASES CITED: Bendigo Bank Ltd v Williams and Others (2000) 98 FCR 377;
Chalmers & Others v Sutherland Shire Council (1997) 95 LGERA 415;
Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1980-1981) 147 CLR 297;
Elazac Pty Ltd v Commissioner of Patents and Another (1994) 125 ALR 663;
G & A Lee and J & A Cormack v Pittwater Council (Talbot J, Land and Environment Court, 20 June 1996, unreported);
McClenahan & Anor v North Sydney Council [2003] NSWLEC 187;
MLC Properties and Another v Camden Council and Others (1997) 96 LGERA 52;
Rizzi and Another v Rockdale Municipal Council (1994) 85 LGERA 113;
Rockdale Municipal Council v M & L Rizzi (Bignold J, Land and Environment Court, 10 May 1991, unreported)DATES OF HEARING: 7/10/2003 DATE OF JUDGMENT:
10/10/2003LEGAL REPRESENTATIVES:
APPLICANT
Mr P. Tomasetti (Barrister)SOLICITORS
Cowley HearneRESPONDENT
SOLICITORS
Mr J. Johnson (Barrister)
Storey & Gough
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10379 of 2003
10 October 2003Cowdroy J
- Applicant
- Respondent
Introduction
1 The respondent (“the council”) has raised a preliminary question of law in an appeal against the council’s refusal of Development Application No. 209/03. Such development application relates to lot 11 in deposited plan 897610 being land known as 16 Dorahy Street, Dundas and seeks approval for, inter alia, the erection of multi unit housing. Specifically the applicant’s development proposal is for sixty-one multi unit housing dwellings, comprised of four detached dwellings each of four bedrooms plus fifty-seven attached and detached dwellings each containing three bedrooms, together with associated parking and garages. The land is affected by the Parramatta Local Environmental Plan 2001 (“the LEP”) and falls within the “2B Residential Zone”. In such zone multi unit housing is permitted with consent.
2 The parties have formulated the question of law as follows:-
- What is the meaning of the phrase “natural ground level” when used in the definition of “multi unit housing” in the Dictionary in the Parramatta Local Environment Plan 2001?
3 The term “multi unit housing” (“the Definition”) is defined in the LEP as follows:-
- multi unit housing means three or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling, but (in the Table to clause 16) does not include any other form of dwellings elsewhere specifically defined in this plan.
4 The LEP contains no definition of “natural ground level” but such phrase is used in other definitions in the LEP, for example in the definitions of “height of a building” and “floor space area”. Such definitions are not however of direct relevance to the issue raised by the question of law.
The council’s submissions
5 In its written submissions the council submits that the interpretation of the phrase “natural ground level” as used in the Definition means the ground level of a site before any site works have been undertaken to alter the naturally occurring height and/or contours of the land. In its oral submissions the council submits that “natural ground level” means the contours of land at the time that application is made for development.
6 The council submits that the phrase “natural ground level” is to be interpreted according to its plain English meaning. The council refers to the decision of Rockdale Municipal Council v M & L Rizzi (Bignold J, Land and Environment Court, 10 May 1991, unreported) in which Bignold J considered the meaning of the word “natural” in the phrase “existing natural ground level”. His Honour said at p 7:-
- I think, “natural” assumes its ordinary meaning (eg. “existing in or formed by nature; constituted by nature”: The Macquarie Dictionary). But in the case of a parcel of residential land situate [sic] in the suburbs of Metropolitan Sydney in 1991 the adjective “natural” is quite apt to create problems if it is to be relied upon as providing a crucial datum for the measurement of height controls imposed upon a proposed building upon an existing developed site. It was no doubt because of these difficulties that the surveyors called by the Respondents proffered opinions that the term may mean the original contours of the subject land. (I would add this interpretation developed in the course of the hearing. It was not the original evidence of either survey of called by the Respondents). However I do not think the adjective “natural” in the expression “existing natural beyond [sic] level” requires or justifies recourse to speculation as to the original landform contours of the subject land.
- Given its context and its clear purpose to establish the relevant datum, (for the purpose of height control), the expression “existing natural ground level” in my judgment means the ground level of the building site existing at the date of development consent in its natural state, as opposed to an artificially modified, state.
His Honour’s interpretation of “existing natural ground level” was confirmed by the New South Wales Court of Appeal in Rizzi and Another v Rockdale Municipal Council (1994) 85 LGERA 113 at p 115.
7 The council also relies upon the decision of Lloyd J in MLC Properties and Another v Camden Council and Others (1997) 96 LGERA 52 wherein His Honour determined at p 56 that the ordinary meaning of the term “ground level” when used in the Camden Local Environmental Plan No. 46 meant natural ground level prior to any development. The council submits that the additional word “natural” in the Definition reinforces its submission that “natural ground level” is the level as existing prior to the undertaking of site works relating to the proposed development.
8 The council submits that s 25(3) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) enables the Court to apply a purposive approach to the interpretation of the phrase “natural ground level”. Section 25(3) of the EP&A Act provides:-
- s 25(3) Where a provision of an environmental planning instrument is genuinely capable of different interpretations, that interpretation which best meets the aims, objectives, policies and strategies stated in that instrument shall be preferred.
The council submits that the aims and objects of the LEP as found in cl 3 thereof are applicable. Clause 3(2)(a) of the LEP refers to the need to consolidate, simplify and update the planning controls in the City of Parramatta. Clause 3(2)(k) of the LEP provides a further objective of the LEP as follows:-
- (k) to create one integrated planning framework for more detailed controls to be contained within the development control plans.
The council maintains that such objectives would be satisfied by an interpretation of “natural ground level” which is applied consistently throughout the LEP.
9 The council submits that use of extrinsic material, namely the provisions of the Parramatta Development Control Plan 2001 (“the DCP”) assists in the interpretation of “natural ground level”. The use of extrinsic material is permissible by virtue of s 34(1)(a) of the Interpretation Act 1987 (“the Interpretation Act”) which provides:-
- s 34 Use of extrinsic material in the interpretation of Acts and statutory rules
- (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
- (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or…
- For the purposes of these proceedings the parties agree that the provisions of s 34(1)(a) of the Interpretation Act can be utilised for the purpose of interpreting the LEP.
10 The council submits that the Court should take cognizance of the provisions of the DCP since one of the objectives of the LEP is to create an integrated planning framework. The council relies upon the decision of Heerey J in Elazac Pty Ltd v Commissioner of Patents and Another (1994) 125 ALR 663 and of the Full Federal Court in Bendigo Bank Ltd v Williams and Others (2000) 98 FCR 377 to submit that subordinate legislation, including regulations, may be used to assist the interpretation of a parent Act.
11 The DCP contains a definition of “natural ground level” as follows:-
- natural ground level means the ground level of a site before any site works have been undertaken to alter the naturally occurring height and/or contours of the land.
The applicant’s submissions
Accordingly, council submits that “natural ground level” should be given a consistent interpretation where that phrase is included in the definitions found in the LEP and the DCP.
12 The applicant submits that the provision of “private open space at natural ground level” is a requirement of multi unit housing which characterises it from other types of residential development. For example residential flat buildings may provide open space by means of a balcony, deck or other artificial structure. Additionally, the applicant submits that there is no provision in the LEP which suggests that contouring of the site by cut and fill is prohibited in multi unit housing development, nor that reasonable excavation or filling cannot be carried out in the development of multi unit housing.
13 The applicant relies upon the observations of Lloyd J in McClenahan & Anor v North Sydney Council [2003] NSWLEC 187 as providing the correct approach when interpreting the LEP. Lloyd J adopted the observations of Gibbs CJ in Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1980-1981) 147 CLR 297. Gibbs CJ said at p 305:-
- However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.
Lloyd J in McClenahan also quoted the joint judgment of Mason and Wilson JJ where Their Honours said at p 321:-
- On the other hand, when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure’ he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
14 The applicant also submits that s 25(3) of the EP&A Act, which is similar to the effect of s 33 of the Interpretation Act, permits the Court to have regard to the purposes or objects of an environmental planning instrument when interpreting “natural ground level”. In support of such submission the applicant also relies upon the observations of Talbot J in G & A Lee and J & A Cormack v Pittwater Council (Talbot J, Land and Environment Court, 20 June 1996, unreported) where His Honour said at p 2:-
- It is appropriate that I have regard to the whole of the planning instrument to determine in accordance with well established principles what the underlying purpose of the LEP is in order to achieve a practical result. It is a planning instrument comprised in subordinate legislation which should not be construed strictly in the same way as the Court might approach the interpretation of an Act of Parliament.
15 Accordingly the applicant refers to the objectives of the LEP, particularly cl 3(2)(c) and cl 3(2)(d) the aims of which are as follows:-
- (c) to encourage a range of development, including housing, employment and recreation, which accommodates the needs of the existing and future residents of the City of Parramatta,
- (d) to provide opportunities for a range of housing types to accommodate the needs of the community.
Additionally the applicant relies upon the objectives of the EP&A Act as stated in s 5. Section 5(a)(ii) provides:-
- s 5 Objects
- The objects of this Act are:
- (a) to encourage:
…
- (ii) the promotion and co-ordination of the orderly and economic use and development of land,
The applicant submits that the definition of multi unit housing, as interpreted by the council, would not achieve the objects of either the LEP or the EP&A Act.
16 With respect to the phrase “natural ground level” the applicant also refers to the observations of Bignold J in Rockdale Municipal Council v Rizzi. However the applicant submits that the word “existing” in the phrase then being considered distinguishes it from the meaning of “natural ground level”. The applicant claims that the fact the word “existing” is not contained in the Definition demonstrates that “natural ground level” means ground level after filling or excavation and not the site as it existed at the date of development consent. That is, as long as there is access to private open space at natural ground level, the requirements of the definition are satisfied.
Findings
17 Each party has submitted that the other party’s interpretation of “natural ground level” would lead to absurd results. It is not disputed between the parties that “natural ground level” means the ground level of land. What is contested is the time at which such level is to be determined. The council claims that “natural ground level” is the level of land determined prior to site works being undertaken. The council acknowledges that “natural ground level” does not equate to the level of the land as it existed from time immemorial, because that level may have altered, as a result of prior development. Such submission therefore gives recognition to the observations of Bignold J in Rockdale Municipal Council v Rizzi. Accordingly the council concedes that if after development a ground level is altered in the development that level may become “natural ground level”.
18 When considering the phrase “existing natural ground level”, Bignold J in Rockdale Municipal Council v Rizzi emphasised the word “existing”. The word “existing” formed the basis for His Honour’s conclusion that the ground level is to be determined in its natural state at the date of development consent, even though His Honour recognised that this might not be the original landform. In contrast the Definition does not contain the word “existing”. The absence of the word “existing” in the Definition suggests that there is no requirement that the “natural ground level” be considered at the date of the application, as submitted by the council. Accordingly the Court rejects the council’s submissions that the phrase “natural ground level” is to be considered when a development application is made. There is no such temporal requirement in the Definition.
19 The question of law now arising is to be determined by considering the context in which the words “natural ground level” arises, namely in the Definition. To qualify as multi unit housing the completed development must provide “private open space at natural ground level” in order to distinguish multi unit housing from other types of development. Applying the purposive approach referred to by Talbot J in Lee and as directed by s 25(3) of the EP&A Act the Court must ascertain the purpose of that requirement contained in the Definition.
20 The purpose of the open space requirement, as is evident from the Definition, is to provide private open space at “natural ground level”. That is, such space is not to be provided at a level above ground such as by an elevated platform or deck, or below ground. The open space at ground level is to be provided at a level commonly understood to be “ground level”. The words “natural” and “ground” describe the requisite level and do not impose an additional constraint that the private open space must be of “natural ground”. Rather it is this level as created by the development at which open space is to be provided to satisfy the Definition. So considered “natural ground level” does not mean the natural ground level of the site before development, but the finished ground level of each of the dwellings comprising the multi unit housing development. Such interpretation of “natural ground level” is consistent with the objectives of the LEP, particularly the objectives which seek to simplify planning controls in the City of Parramatta and to encourage development of a range of housing styles, including multi unit housing.
21 The council relies upon the DCP as extrinsic material to support its submissions. In Chalmers & Others v Sutherland Shire Council (1997) 95 LGERA 415 Lloyd J held that the provisions of a development control plan could not be used to govern the meaning of a local environmental plan. Such finding is respectfully adopted. The Court therefore cannot use the definitions contained in the DCP to interpret the LEP, subject to one matter. When the LEP was formulated, it is apparent that the DCP was intended to complement its provisions. Clause 3(2)(k) of the LEP refers to the creation of an integrated planning framework and for development control plans to contain more detailed controls. Since the LEP and the DCP were adopted in the same year it is useful to have regard to the provisions of the DCP solely for the purpose of considering the requirements for multi unit housing.
22 The Court observes that the provisions of the DCP reinforce its findings made above. For example Part 5.4 of the DCP states, inter alia, the performance criteria and design solutions and controls for multi unit housing. The performance criteria refers to design solutions for providing private open space and includes the following control:-
- A minimum of 40sqm of private open space, off main living area, per dwelling is required at ground level with 1 minimum portion of 4x6 metres.
- Diagrams comprising figures 39 and 40 in Part 5.4 of the DCP depict an area of open space in the nature of a courtyard. If the council’s interpretation of the phrase “natural ground level” were applied, the achievement of the objective and performance criteria might be impossible. It is apparent that the design controls contained in Part 5.4 of the DCP relating to the provision of private open space show that such space is to be provided at ground level rather than “natural” ground level.
- Answer to question of law
23 For the above reasons the Court concludes that the question of law should be answered as follows:-
- “Natural ground level” in the definition of “multi unit housing” in the dictionary of the LEP operates to require the provision of private open space at the level of natural ground of the completed development.
Orders
24 The Court orders:-
1. That costs be reserved;
2. The exhibits be returned.
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