Hillbrook Estate Developments Pty Ltd v Maroochy Shire Council

[2004] QPEC 23

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Hillbrook Estate Developments Pty Ltd v. Maroochy Shire Council [2004] QPEC 023
PARTIES:	HILLBROOK  ESTATE DEVELOPMENTS PTY LTD (Appellant) v MAROOCHY SHIRE COUNCIL (Respondent)
FILE NO:	1315 of 2004
PROCEEDING:	Application for declaration
DELIVERED ON:	7 June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	24 May 2004
JUDGE:	Judge Brabazon QC
ORDER:	Declare that the part of the building at 156 Duporth Ave Maroochydore that contains the mezzanine floor is a seven story building.
CATCHWORDS:	Words and Phrases – “Storey” – “Mezzanine” – Maroochy 1985 Town Planning Scheme – whether a mezzanine floor is counted as a storey within the definition of the Scheme.
COUNSEL:	Mr W Cochrane for the applicant Mr C Hughes SC for the respondent
SOLICITORS:	p&e Law for the applicant Legal Services, Maroochy Shire Council, for the respondent

The Issue

1. The parties ask the court to answer only one question – is the building under construction at 156 Duporth Avenue, Maroochydore a six storey or a seven storey building?  The answer to that question will resolve the principal controversy between the parties.  Any consequential orders are not requested on this occasion. 

Which Definition?

1. The parties contend for the application of different definitions of the word “storey”.  One definition is at page 21 of the 1985 Town Planning Scheme.  (That scheme applies to this dispute, as it was in force at the time that the development approval was lodged, on 22 February 2000.  It was replaced by the new Maroochy Plan on 1 June 2000).

1. The Council submits that it is necessary to look at the definition in the Town Planning Scheme. On the other hand, the applicant says that the definition of “storey” in the Building Code of Australia should be applied. It is a different definition.

1. It is necessary to decide which definition applies to this case.  These are the relevant considerations:

(a)         This building is an “accommodation unit” as defined in the Scheme;

(b)         The building is in the Residential D zone.  Accommodation units are among several “purposes for which buildings or other structures may be erected or used … without consent of the Council”;

(c)         Part V of the Scheme, the requirements in relation to development, set the height limits of such a building.  The number of storeys allowed in the Residential D zone is six; 

(d) The proposed building work was assessable development. That is because it is work subject to the Standard Building Regulation 1993, and is not declared by that regulation to be self-assessable development;

(e)         The Standard Building Regulation is a code for IDAS purposes – see the definition of code in Schedule 10 of the Integrated Planning Act (IPA). 

(f) The Standard Building Regulation incorporates the Building Code of Australia – see Regulation 8.

1. It is necessary to turn to the transitional provisions of the Integrated Planning Act. The key features are:

(a)         All development applications made under the existing schemes must be made and processed under IPA. 

(b)         The application must be processed as if it were one requiring either impact assessment, or code assessment.  That is the consequence of s.6.1.28(2). 

(c)         If public notification was required by under the repealed Local Government (Planning and Environment) Act, then IPA requires impact assessment. An application which did not require public notification requires code assessment. 

1. It will be appreciated that the development, the subject of this application, is building work.  As s.1.3.2 of IPA provides, “development” is any of several things – carrying out building work, plumbing or drainage work, operational work, reconfiguring a lot, or making a material change of the use of  premises. 

1. When IPA was first enacted, s.6.1.29 provided the transitional arrangements for assessing applications.  In effect, the assessment had to take into account all the matters set out in the repealed Act – see s.6.1.29(3).  In addition, the transitional arrangements said that s.3.5.4 and s.3.5.5. of IPA would not apply to the assessment of the application.  Those sections deal with code assessment and impact assessment, respectively.  During the transitional arrangement, there is no need to assess an application against codes that would otherwise be applicable. 

1. It must have been quickly realised that the effect of that provision was to prevent the assessment of a building application against the Standard Building Regulation and the Building Code of Australia. That appears to be the reason why an amendment was soon made to s.6.1.29 and 6.1.30, whereby the heading of each section was changed so that it read:

“6.1.29 Assessing Applications (other than against the Standard Building Regulation)

6.1.30 Deciding Applications (other than under the Standard Building Regulation).”

The effect of the amendment was to simplify both the assessment and decision stages, by requiring only the Standard Building Regulation to be taken into account in assessing applications for the approval of building work.

1. So, putting up an apartment building will always require building approval, and that will always be assessed against the Standard Building Regulation. If there are other assessments, then they will be governed by the transitional provisions of s.6.1.28 to 6.1.30.

1. It was suggested that it would be absurd to have a situation in which consideration might have to be given to two different definitions of “storey”. However, there is really no difficulty about it. The planning scheme says what sort of building can be built on the land. Once the answer to that question is given, then attention changes to the Standard Building Regulation, which says how the building is to be put up. While IPA refers compendiously to “development” it will be appreciated that many applications will deal with different aspects of development, such as those which used to be referred to as planning approval and building approval.

The Planning Scheme

1. Therefore, the definition of “storey” in the Building Code can be put aside, so that attention can be paid to the definition in the Town Planning Scheme:

“Storey – means that space within a building which is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above.”

There is no definition of “floor level”.   “Gross floor area” is said to be the sum of, “the areas … of all storeys of a building or buildings”.

1. The height of buildings is dealt with in Part V:

“1 (i)The height of a building under this scheme shall be determined by the number of storeys therein subject to the following:

(a)the number of storeys shall include any storey or part

           

thereof which is above natural ground level at any          

           

part of the building.  Where the ground is not level

           

the natural ground level shall be the level of the

           

ground on all external sides of the building or where

           

the ground level is to be raised or lowered then such

            

raised or lowered ground level as may be approved

           

by the Council shall be deemed to be the natural

           

ground level for the purpose of this Part provided

           

that a building may be stepped in relation to the

           

natural ground level with the number of storeys

           

related to each particular step.

(b)The number of storeys shall not include any storey which is below natural ground level in its entirety, the areas (inclusive of all walls and columns) on any topmost storey of lift motor rooms, or air conditioning, mechanical or electrical plant or equipment rooms, water tanks or landscaping.”

(c)       …

(d)Any storey that has an internal height of more than 5.2 metres shall be regarded as two storeys. 

(ii)…  A building or other structure shall not be erected to a greater height than the requirements in column (ii) of the following table as they apply to the particular zone set out in column (i) of the table;”

(Then follows the reference to Residential D buildings being limited to six storeys).

This Building

1. The approved plans are exhibited to Mr Wright’s affidavit.  Section AA immediately illustrates the source of the present controversy.  It shows a building that slopes upwards from the back of the building to the front.  That is to say, the lowest part of the roof is towards Duporth Avenue, while the highest part of the roof overlooks the river.  From the point of view of a spectator on Duporth Avenue, the building is one of six storeys.  There are six floors of units, and the roof finishes immediately above the bedroom on the top floor which overlooks Duporth Avenue.  That view can be seen in the southwest elevation. The plans show that the roof facing Duporth Avenue is about 2.6 metres above the floor of that bedroom on level 6. 

1. If one goes to the front of the building, overlooking the river, it can be seen that the peak of the roof is about 5½ metres above that same level 6.  Section AA also shows a mezzanine floor inserted into that much higher space.  The space is 5.12 metres from floor to ceiling.  The mezzanine floor is reached by a staircase from the floor of the kitchen area.  It also extends outside the doors in the front wall onto a balcony overlooking the river.  The balcony, and its doors, appear on the northeast elevation.  As that elevation shows, there are seven levels of doors to the front of the building. 

1. The plans for level 6 and the mezzanine floor show the activities to be found on each level.  Level 6 provides all the usual facilities for a 3 - 4 bedroom unit on the one level, with a lounge room at the front of the building overlooking the river.  The plan for the mezzanine floor shows bedroom 1, an ensuite bathroom, including a spa, and a store room, on the mezzanine floor.  Judging by the plan, the mezzanine floor is about 32 square metres in area.  The mezzanine floor is 20% of the footprint of level 6.

1. Section AA also shows the basement level of the building, entirely below ground level as one leaves Duporth Avenue.  On the riverside, the natural ground level appears to be about half way up that basement level, which is partly covered by a retaining wall.  It was not suggested that any part of that basement level should be counted as a storey.

1. The photographs to Mr Ryter’s report show the almost finished building.  Plate 3 shows the building from the river.  It is dwarfed by the sixteen storey Banyandah Towers on its left.

1. Parts of the above plans are attached to this judgment.

How Many Storeys?

1. It is submitted for the Council that the building has seven storeys, at least in that part of it which contains the mezzanine floor.  The mezzanine floor extends about 5.3 metres back into the building from the wall which overlooks the river.  It is submitted that such is the inevitable conclusion from a straight forward application of the definition.  The plans accurately describe it as a mezzanine floor.  The spaces between the floors and the roof therefore amount to seven storeys, rather than six. 

1. For the developer, it is submitted that a purposive approach to the interpretation of the definition should be applied.  The emphasis in the scheme is on the height of buildings, calculated by reference to the number of storeys.  Attention is focused on the statement that “any storey that has an internal height of more than 5.2 metres shall be regarded as two storeys”.  In this case, the height of the penthouse ceiling is no more than 5.12 metres. Therefore, the total height of a six storey building could be 31.2 metres.  In fact, the maximum height of this building is 19.16 metres above ground level.  It remains a six storey building, despite the mezzanine floor. If the mezzanine were removed, it would undoubtedly be six storeys.  The mezzanine has no practical impact outside the building, apart from the addition of its balcony.

1. Other Australian decisions dealing with the surprisingly difficult concepts of storeys and floors were mentioned.  None of them is helpful in this case.[1] 

1. Assistance can be found in the Scheme’s requirements about the heights of buildings, set out above.  In counting the number of storeys, one looks at any storey or part of a storey which is above natural ground level at any part of the building.  To escape the calculation, a storey has to be completely below natural ground level.  Where a building is stepped along a slope, the number of storeys relates to each step.

1. The same idea, of a building having different heights at different places, is seen in the definition of “Building Height in Metres” – “the height of a building measured vertically at any point from the natural ground level … to the top of the building at that same point …”. 

1. There is no definition of “floor” or “floor level”.  The definition of “gross floor area” shows there is a close correlation between the idea of a floor and of a storey. 

1. The requirement, that any storey with an internal height of more than 5.2 metres shall be regarded as two storeys, does not help in deciding what a storey is.  It is not logical to turn that requirement into a statement that any space with an internal height of less than 5.2 metres has to be regarded as one storey.

1. The scheme does not provide a definition for “mezzanine”.  According to the Macquarie Dictionary it means:

“A low storey between two other storeys of greater height, especially when the low storey and the one beneath it form part of one composition …from the Italian mezzanine, diminutive of meztano, middle, from the Latin medianus.” 

The Conclusion

1. This judgment is not concerned with the merits of the Council’s position.  The affidavits for the developer assert that the impact of the mezzanine is nothing, and that the new six-storey building next door is actually higher.  In any case, the court is required to declare the position adopted by the transitional scheme, whatever it is.  (As it happens, the new scheme makes the position clear, by saying that a mezzanine level is to be counted as a floor – see page 24 of Maroochy Plan 2000).

1. It is not possible to escape the clear meaning of the definition even though it can have surprising consequences.  The mezzanine is a floor level, even though it is only over part of level 6.  The plans call it, quite rightly, “the mezzanine floor”.  That part of the building is seven storeys in height. 

1. Subject to any further submissions, there will be a declaration that part of the building at 156 Duporth Avenue Maroochydore, being that part of the building which is above ground level, and is between the riverside extremities of the building and a section which passes through the internal extremity of the mezzanine floor, is a seven storey building. 

[1] Druitts Developments Pty Ltd v. Gosford City Council (2001) 114 LGERA 61; Songkal Pty Ltd v. Warringah Council (2001) 117 LGERA 237; Wunsch v. Rockdale City Council (2002) 121 LGERA 383; Clayton v. Miriam Vale Shire Council & Webb [2000] QPELA 320; National Land Company v. Cairns City Council [1988] QPELR 247; Queensland Investment Corp v. Toowoomba City Council [2000] QPELR 362; Leichhardt Municipal Council v. Daniel Callaghan Pty Ltd (1981) 46 LGERA 29.