Stanisic Associates v Sydney City Council

[2004] NSWLEC 770

Land and Environment Court

of New South Wales

CITATION:	Stanisic Associates v Sydney City Council [2004] NSWLEC 770
PARTIES:	Stanisic Associates (Appl) Sydney City Council (Resp)
FILE NUMBER(S):	11090 of 2004
CORAM:	McClellan CJ
KEY ISSUES:	Question of Law :- Construing the terms of the relevant DCP as it relates to the height of a building
LEGISLATION CITED:	Land and Environment Court Act 1979
CASES CITED:
DATES OF HEARING:	16 December 2004
EX TEMPORE JUDGMENT DATE :	12/16/2004
LEGAL REPRESENTATIVES:	P J McEwen SC (Appl) Phillips Fox (Solicitors - Appl) C Leggat (Resp) Maddocks (Solicitors - Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

THURSDAY 16 DECEMBER 2004

11090/04 STANISIC ASSOCIATES v SYDNEY CITY COUNCIL

JUDGMENT

1 HIS HONOUR: This matter comes before me by way of reference pursuant to s 36(5) of the Land and Environment Court Act. I had previously directed that the proceedings be heard and disposed of by Commissioner Watts. As I understand the position the applicant and the Council reached agreement in the matter and came before Commissioner Watts so that he could consider whether the Court would exercise the discretion and grant the approval contemplated by the parties.

2 As is the usual course, objectors were provided with an opportunity to inform the Commissioner of their views in relation to the matter. One of the objectors raised a question as to whether or not the application, in its present form, complies with the relevant development control plan. Difficulties emerged in the construction of the relevant provisions of that plan and, accordingly, the Commissioner, of his own motion, has referred a question of law to me for consideration and determination by a judge. I have decided that I will determine the matter myself.

3 The building as proposed is a residential flat building and has a proposed height of eighteen metres at its main parapet level. A further level of accommodation is proposed on top of the eighteen metre level which will provide for a number of components of the individual dwellings. Unless the development control plan is construed so as to allow for the additional accommodation the Commissioner will be considering an application which does not comply with the development control plan. This, of course, does not mean that the application must necessarily be refused, although the weighting of the objector’s position may alter. Those, of course, are matters for the Commissioner.

4 The Commissioner placed on paper a question of law which has two components. It reads as follows:

“Whether the DCP controls relating to height:
(a) permits part floor or storey in excess of the 18m plane being part floor or storey within an envelope defined by a 36 degree plane such being a drawn plane and not a constructed roof plane;
(b) whether the 36 degree plane is to be taken from the site boundary or the edge of the proposed building at a height of 18m above the natural ground line.”

5 At the outset, I should observe that the document has not been worded in a particularly helpful manner. If the document is to be construed as providing particular controls, great care should be taken to ensure that the language used in the document clearly indicates the controls which are intended. This document does not do that.

6 The relevant section dealing with height and scale of buildings is s 2.3. It provides an objective in the following terms:

"To ensure buildings:

Are appropriate in scale, compatible and complementary with areas of townscape significance, the site and its context;
Do not dominate and overshadow the Public Domain;
Achieve high environmental amenity."

7 No guidance is given as to the way in which any of these objectives should be particularly achieved. However, when it comes to considering the precise wording of the height control, it seems to me appropriate to endeavour to construe those controls in a manner which is, as far as one can discern it, consistent with the intention expressed in the objectives.

8 Accordingly, it seems to me that one should endeavour to construe the controls to identify the absolute height of any building which will be appropriate, having regard to its capacity to conform to the existing built form, and ensure that it does not unnecessarily overshadow adjoining properties, particularly the public openspace.

9 Performance criteria are defined. These criteria are expressed in terms of height and scale and are apparently designed to ensure that proposed buildings reflect the existing built form in the immediate locality. Again matters of solar access and the amenity of adjoining buildings and public streets and spaces are stressed.

10 The controls are then provided in a separate box section. The primary control is expressed as follows:

“Building height is no greater than the height specified in the Height Control Map not including an Attic as defined in this Development Control Plan.”

11 Apparently, that provision is to be understood as saying that no building is to exceed the height specified in the height control map but in addition to that height an attic, as defined in the development control plan, may be permitted. The relevant height provided by the height control map in relation to the subject site is eighteen metres.

12 The control then provides for a potential to vary the height in the height control map. Again, ambiguously expressed, there is a capacity to vary the height specified for infill linear development in “exceptional circumstances”. However, the document does not give any indication as to what is meant by exceptional circumstances.

13 One is left to search for some guidance, presumably from general planning principles. To be effective, the document should have indicated what it was that the author was talking about.

14 Provision is then made for a relationship between buildings and rear lanes and a final paragraph is included which reads as follows:

“In special circumstances Council may support a part storey above the prescribed height limit provided the part storey is wholly within the 36 degree Attic height plane as defined. (Refer to Figure E-3)”

15 Figure E-3 is a diagrammatic representation of a roof form with internal space which conforms with the definition of attic which is included within the development control plan. That definition reads as follows:

“ Attic The top storey of a building, formed by the roof space or under the beams of the roof, where there are two or more storeys. For the purpose of the definition of the building height:

Attics can be built if the roof angle or pitch is not greater than 36 degrees.
For an attic to constitute a room in the roof (and not an additional storey) the roof must pitch from the ceiling level of the upper most floor.”

16 The reference to Figure E-3 in the final paragraph serves to confuse what might otherwise have been a relatively clear provision. Apparently, the Commissioner and the objector who has raised the point, suggest that the consequence of the reference to figure E3, which incorporates the definition, is that additional space above eighteen metres can only be provided if it sits within an attic roof form. If the additional space is provided with a flat roof, then the submission is it could not be permitted under the development control plan.

17 I do not find this an attractive construction of the document. The document is designed to assist in the determination of the merits of particular applications. Accordingly, the objectives expressed in that document should be given a place of significance when seeking to construe the controls. Those controls should be understood in a manner which ensures that the objectives can be achieved.

18 Accordingly, it seems to me, that the controls, both the first and the final paragraph, should be understood as providing the opportunity for additional accommodation to be provided above the eighteen metre height level provided the accommodation sits within the plane formed by an angle taken at 36 degrees from the edge of the building. It matters not whether the accommodation to be provided within that space takes a flat roof or pitched roof form. Of course, whether or not it should be approved will depend upon the merits of the application which is the matter for the Commissioner to determine.

19 Accordingly, I answer Question A by saying "yes."

20 The second question has been briefly discussed but I understand that the applicant says it does not arise. The applicant accepts that the 36 degree angle must be taken from the edge of the proposed building and is content to argue the merits of this application having regard to that construction. Accordingly, I decline to answer Question B.

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