McGrath Co Pty Ltd v Brisbane City Council

[2002] QPEC 4

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	McGrath Corp P/L v Brisbane City Council & Ors [2002] QPE 004
PARTIES:	McGRATH CORPORATION PTY LTD (ACN 010 829 491) Applicant -v- BRISBANE CITY COUNCIL First Respondent and BRENDA LYNCH Second Respondent and DELL C ORR Third Respondent and RB AND DP KNAPP Fourth Respondent and JG ALLPASS Fifth Respondent and VIOLETE E COTTON Sixth Respondent and HEILBRONN & PARTNERS PTY LTD Seventh Respondent and WAYNE ROBINSON Eighth Respondent and J AND S CARNEY Ninth Respondent and CD CHARLES Tenth Respondent
FILE NO/S:	5734 of 2001
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	6 February 2002
DELIVERED AT:	Brisbane
HEARING DATE:	10 December 2001
JUDGE:	Senior Judge Skoien
ORDER:	Declare “front wall of building” is the northern wall of building on drawing 8912/PR04
CATCHWORDS:	“Front wall of building” – meaning; purpose of statute.
COUNSEL:	Mr Hinson S.C. for Applicant Mr Rackemann for Respondent
SOLICITORS:	Kinneally Mahoney for the Applicant Brisbane City Legal Practice for the First Respondent

1. This application is made under s. 4.1.21(1)(B) of the Integrated Planning Act 1997

   for declarations about the construction of certain provisions of the City of Brisbane

   Town Plan 1987 and relates to a multi-storey apartment building to be constructed

   by McGrath.

2. The proposed apartment building is intended to be constructed at Kangaroo Point on

   a site which is bounded on its northern side by Cairns Street, on its eastern side by

   O’Connell Street, and on its southern and western sides by privately owned land.

   Vehicular entrance to the site is to be from O’Connell Street at ground level. All

   carparking is to be in a two level basement carpark. Vehicles will leave the site

   from the lower basement level onto Cairns Street, or at ground level to O’Connell

   Street if they have not entered the basement carpark.

3. The site is immediately opposite a low rise section of the development known as

   Dockside (that part which fronts the old dry dock). The closest reach of the river is

   located to the north-east whilst the Brisbane CBD is to the north-west. The land

   slopes down somewhat from south to north.

4. The proposed roughly rectangular apartment building has its greatest length facing

   to the north and to the south. The short sides of the building front O’Connell Street

   to the east and the neighbouring property to the west. Neither party contends that

   one of the short sides of the building ought be identified as the “front” of the

   building for present purposes.

5. Of the two long sides of the building, only one has a street frontage, that is the wall

   of the building facing Cairns Street. That side of the apartment building features

   extensive balconies not only at the entrance level but also at the living levels. There

   are no doors on this wall other than the exit from the carpark described in para [2].

   Reference to a typical floor plan shows that, generally speaking, the main living

   areas of the units are orientated in the direction of Cairns Street, and more

   particularly, towards the north-east to north-west aspect where lie the most

   interesting and attractive views. The elevations in the architects’ drawings show

   that this northern side of the building has been carefully designed to make it

   attractive and interesting. It contains, for example, a waterfall near ground level, a

   balcony which runs the full length of the wall outside the glass walls of public

   rooms and above them the twin towers with apartments and full width balconies.

   To people looking at it from the north, it would be a substantial and impressive

   building.

6. The southern wall of the building has no street frontage but contains the porte

   cochere and the pedestrian entrance to the lobby. This is the main and only entrance

   to and exit from the building by pedestrians. It too has some balconies although in

   my opinion the overall orientation of the building is more to the north than to the

   south. The architects’ elevation drawings show this northern wall, other than at the

   entrance level, to be very bland compared with the northern wall and much less

   interesting and impressive.

7. In July 2001 the Council raised an issue about the definition of “Ground Storey” in

   the City of Brisbane Town Plan 1987 and as a consequence, an issue about the gross

   floor area of the apartment building.

8. Section 30.3 of the Town Plan defines “Gross Floor Area” as meaning the sum of

   the plan areas of all floor levels including certain areas but excluding inter alia, the

   area of any lobby at ground storey level and the areas at any ground storey of

   certain landscape and recreation areas.

9. Section 30.3 of the Town Plan contains the following definitions:-

   “GROUND STOREY”, with respect to a building containing more than one storey, means that storey in the building closer or closest, as the case may be, to the ground level in which the height of the ceiling above the level of the adjoining ground measured at the middle of the face of the front wall of the building is greater than the distance from the level of the adjoining ground to the floor so measured.

   “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.

   “GROUND LEVEL”, unless the context otherwise requires, means-

(a)

in a case where any material excavation with respect to the land the ground level whereof is to be determined has been carried out to facilitate the erection of a building or other structure and that building or part thereof is erected at the appointed day, the likely ground level had that building or other structure or part thereof not been erected;

(b)

in a case where, on the land the ground level whereof is to be determined, any material or substance has been deposited so as to raise the level of that land and –

(i)	that depositing of material or substance was not in contravention of the Plan; and
(ii)	that material or substance remains upon the land,

the ground level or probable ground level at the date of
registration of the title deed for that allotment;

(c)

in any other case, that level at the appointed day.

“HEIGHT”, with respect to any thing, unless the context otherwise indicates or requires, means the height of that thing measured from ground level.

“LEVEL OF THE ADJOINING GROUND” with respect to part of a building, means the actual level of that ground most adjacent to that part of a building.

1. McGrath argues that:

(a)	the front wall of the building is the southern wall being the wall adjacent to the porte cochere; and
(b)	the expression “the ground level” in the definition of “Ground Storey” means the level of the adjoining ground at the middle of the face of the front wall of the building, that being the level from which the height of the ceiling and the distance to the floor is to be measured.

1. The first point is the primary point because, to put it shortly, if McGrath is correct it

   enables an argument that the building can have a greater gross floor area than if, as

   the Council argues, the front wall of the building is the northern wall, the wall

   facing Cairns Street. The second point needs to be considered only if McGrath’s

   argument on the first point is successful.

2. What then would be the “front wall of the building”? This, it was common ground,

   involves finding what would be the front of the building. The most apposite

   definitions of “front” given in the Shorter Oxford English Dictionary are:-

   “Arch. Any side or face of a building, but more commonly the
   entrance side.” and

   “Gen. The part or side of an object which seems to look out or be presented to the eye; the foremost part of anything.”

   The Macquarie Dictionary gives, most appropriately:-

“1.	The foremost part or surface of anything.
2.	The part or side of anything, as a house, which seems to look out or be directed forward.
3.	Any side or face, as of a house.”

The Collins Dictionary offers:

“1. That part or side that is forward, prominent or most often
seen or used.”

1. Mr Hinson, senior counsel for McGrath, submitted that in accordance with the first,

   (and, it is noted, architectural) definition given by the SOED the more common meaning of “front wall” in relation to a building is that wall in which the principal

   entrance is located. Here, that is the southern wall, a fortiori because the southern

   wall contains the only entrance to the building as well as the lobby, a space

   customarily found at the front of a building. He sought to exemplify this by asking,

   rhetorically, where a person would go if invited to go to the front of buildings such

   as the Treasury or the City Hall, the former of which has streets on all four sides and

   the latter streets on two sides and a public square on a third side. In each case, he

   submitted, one would go to the main entrance to the building. That is plainly

   correct, so far as those buildings are concerned.

2. However, I am not at all sure that those two examples assist in this case. In those

   two examples, each of the front walls of the building looks out onto public areas.

   Each building, in my opinion, presents itself to those public areas. The two

   examples thus rather fit the second SOED definition, each of the Macquarie

   definitions and the Collins definition. The southern wall of this proposed building

   does not look at or present itself to the public. It looks out onto part of the site itself

   so that wall of the building does not face and present itself to the public.

3. A house allotment may border a road on one side and on the opposite side some

   spectacular feature such as a river. The section of the house closer to the road often

   contains the functional areas (laundry, kitchen etc) while those rooms used for

   enjoyment, entertaining etc. are likely to face the spectacular feature. The main

   door may well be on a side wall or on the wall facing the road yet I dare say most

   would consider the front of the house to be the part oriented toward the spectacular

   feature. So to me the real question is “in what direction does the building present itself; in what direction does it look out; in what direction does it orientate itself?”

   That is the front as defined in all but the first SOED definition.

4. To revert to Mr Hinson’s question “where would the person invited to the ‘front’ of

   the building go”, I look at the architects’ drawings of this building. Judging from

   those which are before me, I would think that an ordinary reasonable visitor who

   looked at all four sides of this building would probably consider the front to be the

   northern wall. It gives the impression of presenting the face of the building to the

   public of looking out in that direction, of being oriented in that direction, so that

   even though there is no entry in that wall most visitors would still regard that as the

   front of the building.

5. In a case such as this it is important to consider the provisions of s. 14A of the Acts

   Interpretation Act 1954 which include:-

“(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”

1. The question which is under consideration relates to the statutory definition of

   Gross Floor Area which is the factor by reference to which the Town Plan (and also

   the Kangaroo Point Peninsula Development Control Plan) control the intensity of

   development. I accept Mr Rackemann’s submission that the intensity, and

   consequently the bulk and scale of a development is something which is perceived

   by the public who view the building from beyond the site. It is reasonable therefore

   to identify the front of the building by reference to the wall of the building which an

   ordinary passerby would identify as the front because of the building’s orientation,

   its presentation, rather than to identify it by reference to what side of the building

   someone must go to in order to obtain access to it. In my view the wall which fulfills that role is the northern wall, the one that faces Cairns Street. It is the front

   wall of the building, not only from an application of the most appropriate dictionary

   definition, but also because it best fits the most probable intention of the relevant

   legislation.

2. I was referred to two authorities, Justices of Bedfordshire v The Commissioners for

   the Improvement of Bedford (1852) 7 Ex 658 and Bedford General Infirmary v The

   Commissioners for the Improvement of Bedford (1852) 7 Ex 768. Those cases dealt

   with the question of the rateability of public buildings, the rate being expressed to

   relate to the length of the front of the buildings. The ratio of the various judgments

   relies on the object of the legislation which they saw to be the maintenance of the

   repair and lighting of the public streets. It was held that there was a close

   connection between that object and the length of any wall of the building with a

   frontage to a public street, whether or not the wall had doors and windows so that

   rates should be assessed on the entire length of such walls. The two cases are

   interesting examples of the application of the principle of statutory interpretation

   now expressed in s.14A(1) of the Acts Interpretation Act. They fortify the

   conclusion I have reached.

3. The right of McGrath to exclude from calculation of gross floor area the area of the

   lobby depends on the storey containing the lobby to be the ground storey. Having

   determined that the front wall is not the southern wall but the northern wall, the

   ground storey cannot possibly be the storey containing the lobby. The second

   question becomes academic and need not be pursued.

4. I declare that on the proper construction of the City of Brisbane Town Plan 1987 the

   expression “the front wall of the building in the definition of “Ground Storey”

   means in relation to the building shown on Drawing 8912/PRO4 the northern wall

   of the building.