Honest Holdings Pty Ltd v City of Nedlands
[1999] WASCA 219
•12 OCTOBER 1999
HONEST HOLDINGS PTY LTD -v- CITY OF NEDLANDS [1999] WASCA 219
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 219 | |
| Case No: | SJA:1087/1999 | 12 OCTOBER 1999 | |
| Coram: | McKECHNIE J | 12/10/99 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | HONEST HOLDINGS PTY LTD (ACN 009 374 574) CITY OF NEDLANDS |
Catchwords: | Local Government Planning approval prescribing a level of fill at boundary What constitutes the boundary Words and phrases "At the boundary" |
Legislation: | Town Planning & Development Act 1928 (WA), s 10 |
Case References: | Price v The Bala Festiniog Railway Co (1884) 50 LT 787 Stewart v Patrick 68 NY 450 Dachs v Yarrowlumla Shire Council (1993) 79 LGERA 220 Shire of Perth v O'Keefe (1964) 110 CLR 529 Bonton v City of South Perth [1982] WAR 213 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Local Government - Planning approval prescribing a level of fill at boundary - What constitutes the boundary - Words and phrases - "At the boundary"
Legislation:
Town Planning & Development Act 1928 (WA), s 10
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr M J Hawkins
Respondent : Mr D W McLeod
Solicitors:
Appellant : Godfrey Virtue & Co
Respondent : McLeod & Co
Case(s) referred to in judgment(s):
Price v The Bala Festiniog Railway Co (1884) 50 LT 787
Stewart v Patrick 68 NY 450
Case(s) also cited:
Dachs v Yarrowlumla Shire Council (1993) 79 LGERA 220
Shire of Perth v O'Keefe (1964) 110 CLR 529
Bonton v City of South Perth [1982] WAR 213
(Page 3)
1 McKECHNIE J: This appeal turns on the meaning of the phrase: "fill at any boundary must not exceed 500 mm above natural ground level". This phrase is condition (iii) of a Notice of Planning Approval issued by the City of Nedlands to the appellant which trades as Atrium Homes. The facts giving rise to the dispute are no longer in issue, having been determined in the Court of Petty Sessions.
2 The appellant was contracted to build a two-storey residence at 38 Minora Road, Dalkeith. In the course of construction, a dispute arose as to whether the height of fill exceeded .5 metres. Ultimately, the City of Nedlands prosecuted the appellant on complaint that read:
"Honest Holdings Pty Ltd continued to carry out a development on the Land, which development was required to comply with the City of Nedlands Town Planning Scheme No 2 otherwise than in accordance with a condition imposed with respect to the development by the City of Nedlands pursuant to its powers under that scheme and thereby committed an offence, under Section 10(4)(a)(ii) of the Town Planning & Development Act 1928."
3 The condition referred to in the complaint is that I have outlined above. The learned Magistrate found that the fill on the subject site was at least 150 mm above the height limitation. He concluded in his reasons that the condition means "at or about the boundary". What he said was:
"I find that the condition means 'at or about the boundary,' otherwise, if the defence submission is accepted, anyone who erects a retaining wall would not be in breach of that condition because the fill could never be on the boundary because of the retaining wall presenting as a barrier between the boundary and the actual fill sand. This would, I believe, lead to absurd results, as retaining walls are common where significant fill is involved.
I do not accept the prosecution's submission that the words need a practical application and not an unduly technical one, …"
4 The evidence disclosed that the council had inserted a condition as to the height of fill at a boundary for legitimate planning purposes. As the Manager of Planning Services for the City put in evidence:
"Well, if the land is filled right to the extent that it artificially creates a high block, it thereby increases the potential of
(Page 4)
- overlooking on to the neighbour's block and that is a very sensitive issue in the City of Nedlands."
5 The streetscape is based on .5 metre fill over most properties within the City and especially in Minora Road. In the condition the council was referring to the cadastral boundary.
6 The evidence disclosed that there is a dispute between the neighbours as to the true line of the boundary. Many years ago, it appears that a parapet wall was built on 36 Minora Road. The plan submitted to council for approval shows a limestone boundary retaining wall running from the road to the end of the block on both sides. On the plan this wall is shown as touching the parapet wall on 36 Minora Road.
7 In my opinion, the fact that the boundary wall so constructed may be slightly within the cadastral boundary has significance in only one aspect. That aspect is the extent of the gap. I do not consider the fact that the boundary wall is not completely contiguous with the cadastral boundary has any other significance. It appears that all parties intended the wall to be the actual boundary and contiguous with the cadastral boundary.
8 Assistance can be drawn from an early authority of the Supreme Court of New York in Stewart v Patrick 68 NY 450. The issue involved a conveyance of land where the boundaries were described as beginning at a certain tree. The question was whether that meant the centre of the tree. The Court held at 454 of the report:
"But with proof of an actual division and occupation upon a line beginning at the outer surface or near the tree, the deed may be interpreted in conformity with the practical effect given it by the parties. The description, in connection with the visible occupation, was sufficiently accurate for all practical purposes, and the line located at the outer surface of the tree is not inconsistent with the terms of the deed. The corner is substantially 'at' the tree."
9 The practical reality in this case is that the appellant and the council proceeded as if the wall on the plan represented the cadastral boundary. The neighbours, until the dispute arose, assumed that the boundary wall was the practical boundary. There is a gap between the cadastral boundary and the retaining wall, and that gap is 160 to 180 mm along the whole length. It is the extent of this gap which is significant. It is obvious, and the evidence in this case is, that a wall is necessary to retain fill.
(Page 5)
10 In this case, the retaining wall was made of limestone blocks. The evidence was that they were 300 or 350 mm in width. It is submitted by the appellant that the combination of the gap and the width of the blocks meant that there was a distance of around .5 of a metre from the cadastral boundary and the commencement of the fill. Thus, it is argued, the fill on the inside face of the limestone blocks was not "at any boundary".
11 "At" is a preposition. It imports a geographical position. The Oxford English Dictionary defines "at" as:
"Expressing primarily the relation of a thing to a point of space which it touches; hence, indefinitely, the place where it is in the sense of close to, nearby, in, etcetera."
12 The use of dictionary definitions was discussed by Chitty J in Price v The Bala Festiniog Railway Co (1884) 50 LT 787. In that case, the issue was whether a goods and cattle station erected 140 yards from Bala Station was erected at the station in contravention of an Act of Parliament. Chitty J held at 788:
"Although I agree that, when we come to construe an Act of Parliament or an agreement, it is dangerous merely to take a dictionary meaning, still the dictionaries do assist, and another decision sometimes assists by way of throwing light upon the case, though not to be taken as an absolute guide. James, L J says: 'According to Richardson's Dictionary "at" is used to denote near approach, nearness, or proximity, adjunction or conjunction, association or consociation, connection; and that would seem to be its natural or ordinary idiomatic use of the English language. …' "
13 The "at" is to be construed according to the circumstances in which it is used. Here it is used as a condition for planning approval. In this context, my judgment is that "at" means "as close as is reasonably possible to the cadastral boundary". Any other interpretation would lead on some occasions to absurd results. One of those was illustrated by the Magistrate. For example, a very thick retaining wall built on the boundary would render the fill not "at the boundary". This would be notwithstanding that a retaining wall is essential.
14 The meaning which I have ascribed to the word "at" is in conformity with its dictionary meaning denoting a position in space. In this case, it is happenstance that the cadastral line and the retaining wall do not precisely coincide. The fill is against the inner face of the retaining wall. In my
(Page 6)
- judgment, the fill is as close as is reasonably possible to the boundary. The fill at that point exceeds the .5 metre limit as found by the Magistrate. For all practical purposes, the fill exceeding the .5 metre limit is at the boundary.
15 The appellant was rightly convicted and the appeal should be dismissed.
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