McClenahan v North Sydney Council - [2003] NSWLEC 187

Reported Decision: 127 LGERA 210

Land and Environment Court

of New South Wales

CITATION: McClenahan & Anor v North Sydney Council [2003] NSWLEC 187

PARTIES:
APPLICANTS:
John McClenahan and Tomoko McClenahan
RESPONDENT:
North Sydney Council

FILE NUMBER(S): 10552 of 2003

CORAM: Lloyd J

KEY ISSUES:
Question of Law :- statutory interpretation - "apartment building within a building"
Words and Phrases:- "within"

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97
Land and Environment Court Act 1979 s 39(2)
North Sydney Local Environmental Plan 2001 cl 6, cl 26(1), cl 26(2), sch 2

CASES CITED: Chambers v Maclean Shire Council [2003] NSWCA 100;
Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (Cth) (1981) 147 CLR 297;
Moreton Central Sugar Mill Co Ltd v The Commissioner of Taxation (Cth) (1967) 116 CLR 151

DATES OF HEARING: 04/08/2003

DATE OF JUDGMENT:
08/27/2003

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr B J Preston SC
SOLICITORS:
Dibbs Barker Gosling
RESPONDENT:
Mr S B Austin QC and Mr D R Parry (barrister)
Mallesons Stephen Jaques

JUDGMENT:

- 9 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

100552 of 2003

Lloyd J

27 August 2003

JOHN McCLENAHAN AND TOMOKO McCLENAHAN

Applicants

NORTH SYDNEY CITY COUNCIL

Respondent

JUDGMENT

Introduction

1 This is the separate determination of an issue raised in an appeal against the refusal by the respondent, North Sydney Council, of a development application. (The determination of any question separately from any other question is permitted by Pt 31 r 2 of the Supreme Court Rules, which applies in this Court: see Pt 6 r 1 of the Land and Environment Court Rules 1996.)

2 The question for determination is whether the proposed development is for the purpose of “apartment building adaptation” within the meaning of the North Sydney Local Environmental Plan 2001 (“the LEP”). If it is, then it is permissible with consent; if not, then it is prohibited.

The proposed development

3 The proposed development is at No. 57 Cremorne Road, Cremorne Point. Erected upon the property is a dwelling house known as “Strathmore”, which is listed as a heritage item of local significance under the LEP. These proceedings are an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) against the refusal by the council of a development application for the partial demolition of “Strathmore” and the creation of four apartments by way of alterations and additions to that existing building.

4 The plans which accompanied the development application show one apartment on each floor and an underground car park for six cars. The proposed apartments and the car park extend beyond the fabric of the existing building. The areas proposed to be constructed outside the fabric of the existing building are extensive.

North Sydney Local Environmental Plan 2001

5 The relevant provisions of this instrument which bear upon the question for determination are as follows.

6 Clause 6 of the LEP is headed “Definitions and interpretation”. It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 187
Decision Date: 08/27/2003

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with an appeal from John McClenahan and Tomoko McClenahan against the North Sydney Council's refusal to grant a development application for the partial demolition of a heritage-listed house, "Strathmore", and the creation of four apartments by alterations and additions. The crux of the appeal hinged on the interpretation of the phrase "apartment building adaptation" in the North Sydney Local Environmental Plan 2001, specifically whether the proposed development could be classified as such. If it did not, the development would be prohibited.

The key legal issue before the Court was the interpretation of the term "within" in the definition of "apartment building adaptation". The applicants argued that the term "within" did not necessarily mean "wholly within" and that the proposed apartments, though extending beyond the fabric of the existing building, could still be considered "within" the building for the purposes of the definition. Conversely, the Council argued that the word "within" meant "inside" and that since the proposed apartments extended beyond the existing building, they could not be considered "within" it, thus rendering the development prohibited.

Justice Lloyd considered the context and objectives of the Local Environmental Plan, particularly Clause 26, which outlined the controls and objectives for apartment building adaptations. The objectives included ensuring that adaptations be carried out substantially within the fabric of the existing building and that they substantially retain the existing external walls and roof. The Court held that the definition of "apartment building adaptation" should be read in conjunction with these objectives and controls, leading to the conclusion that "within" meant "substantially within" rather than "wholly within". However, applying this interpretation to the facts, the Court found that the proposed development involved extensive areas outside the fabric of the existing building, making it not substantially within the building. Consequently, the proposed development was prohibited, and the appeal was dismissed.

Orders