The Body Corporate for the Village of Langler Drew Community Titles Scheme 16700 v Brisbane City Council

[2014] QPEC 54

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

The Body Corporate for the Village of Langler Drew Community Titles Scheme 16700 v Brisbane City Council & Ors [2014] QPEC 54

PARTIES:

THE BODY CORPORATE FOR THE VILLAGE OF LANGLER DREW COMMUNITY TITLES SCHEME 16700
(Applicant)

and

BRISBANE CITY COUNCIL
(First Respondent)

and

WOODS PROPERTY DEVELOPMENTS PTY LTD ACN 179 005 379 AS TRUSTEE UNDER INSTRUMENT NO. 703420894
(Third Respondent)

and

TREGASKIS INVESTMENTS PTY LTD ACN 079 030 514 AS TRUSREE UNDER INSTRUMENT NO. 079 005 379
(Fourth Respondent)

and

ANDREW GORDON WOODS
(Fifth Respondent)

and

CAMERON WILLIAM TREGASKIS
(Sixth Respondent)

FILE NOS:

1313 of 2014

PROCEEDING:

Application for determination of preliminary issue

DELIVERED ON:

11 September 2014

DELIVERED AT:

Southport

HEARING DATES:

26 and 27 June 2014 at Brisbane

JUDGE:

Judge C F Wall QC

ORDERS:

1.       Declare that the development application, the subject of this proceeding, is for a building of 8 storeys in height for the purposes of Brisbane City Plan 2000.

2.       Declare that the development application was a code assessable application.

3.       Reserve the costs of the application.

LEGISLATION:

Brisbane City Plan 2000
Sustainable Planning Act 2009. Schedule 3 and
Statutory Instruments Act 1992, Section 37

CASES:

Cox v Maroochydore Shire Council [2006] QPELR 628
Leichardt M.C. v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29
Carey v North Sydney Council [1999] NSW LEC 174
Wunsch v Rockdale City Council (2002) 121 LGERA 383
Nader v Sutherland Shire Council [2008] NSWCA 265

CATCHWORDS:

ENVIRONMENT AND PLANNING – TOWN PLANNING – whether building more than 8 storeys high for the purposes of Brisbane City Plan 2000

COUNSEL:

Mr D.R. Gore QC for the Applicant

Mr  M.D. Hinson QC and Mr T.M. Trotter for the First Respondent

Mr C. Hughes QC and Mr M. Williamson for the Third, Fourth Fifth and Sixth Respondents

SOLICITORS:

Norton Rose Fulbright Australia for the Applicant

Brisbane City Legal for the First Respondent

McCullough Robertson Lawyers for the Third, Fourth, Fifth and Sixth Respondents

Introduction

1. The preliminary point to be decided in this application is whether there are 8 storeys or 9 or 10 storeys in a building proposed to be built at 2-6 Maryvale Street, Toowong.

1. The Council and the developer (the Respondents) maintain it is 8 storeys and code assessable.  The applicant maintains it is 9 or 10 storeys and impact assessable.  A building above 8 storeys is impact assessable.

1. The building plans are ex 2.  By reference to drawings A2-100 and A3-100 the areas said by the applicant to be storeys are

   (a)        the area below RL12.550 i.e. between the floor or slab of the Level 1 carpark and NGL (natural ground level) (the bottom or undercroft area).  The Applicant maintains this area is “storey no. 1”; and

   (b)        the area above RL37.110 on top of the building where the plant deck, communal area (or roof deck with a pergola) and top of the lift shaft and stairwells are located (the top area). The Applicant maintains this area is “storey no. 10”.

2. Relevant definitions in Brisbane City Plan 2000 are as follows:

‘Storey’ –
A space within a building which is situated between 1 floor level and the floor level next above it and commencing at ground level, or if there is no floor level above, the ceiling or roof, above, but not a space that contains only:

·a lift shaft, stairway or meter room, or

·      a bathroom, shower room, laundry, watercloset or other sanitary compartment, or

·      a combination of the above.

For the purposes of this definition a mezzanine is a storey. 
The term ‘Ground Storey” as defined elsewhere in this section is not applicable when determining the overall height of a building in storeys.

‘Ground Storey’ –
Where a building contains more than 1 storey, the ground storey is the one closest to the ground level (where the distance between ground level and the ceiling, measured at the middle of the face of the front wall of the building, is greater than the distance between ground level and the floor).  The term Ground Storey is not applicable when determining the overall height of a building in storeys.

‘Ground Level’ –
The level of the land at the time the original estate was subdivided, and the roads through the estate created, as determined by a licensed cadastral surveyor using best evidence.

‘Gross Floor Area’ –
… the total area of all floor levels in the building on the site to which the developer relates, measured to the inside of the external walls including:
….

·      all internal and external stairs…. Escalators or other means of access between levels

but excluding the area of:

·      any lift plant, motor room or air conditioning or other mechanical/electrical plant and equipment room

·      any private balcony…. whether roofed or not….

·      any roof deck, where not used as a Restaurant, Shop, Club, Hotel or Nightclub.  A roof deck includes any outdoor space in or on the building that is situated wholly or immediately above an enclosed storey or a storey used for carparking.

1. City Plan 2000 does not define “building” but Sch 3 of the Sustainable Planning Act 2009[1] defines it as

a fixed structure that is wholly or partly enclosed by wall and is roofed, and includes… any part of a building.

[1] Applicable via s 37 Statutory Instruments Act 1992

1. Other dictionary definitions referred to by the parties are as follows (Macquarie Dictionary)

‘Floor’ –
That part of a room or the like which forms its lower enclosing surface, and upon which one walks or a level supporting surface in any structure.

‘Above’ –
In or to a higher place; overhead: the blue sky above.

‘Between’ –
The space separating (two or more points, objects).

‘Ceiling’ –
The overhead interior lining of a room; the surface of a room opposite the floor.

‘Roof’ –
1.  the external upper covering of a house or other building.  3.  the highest part or summit.  4.  something which in form or position resembles the roof of a house.

‘Space’ –
1.  an expanse extending in all directions.  4.  extent or area; a particular extent of surface.

‘Within’ –
1.  in or into the interior or inner part, or inside.  2.  in or into a house, building etc, or indoors.  4.  on, or as regards, the inside, or internally.  6.  in or into the interior of or the parts of or space enclosed by: within a city or its walls.

1. There is no dispute about the physical characteristics of each area rather the dispute centres around how they should be characterised.  It is necessary though to briefly describe each area.

1. The bottom area is designed for stormwater management and to accommodate overland stormwater flows which precluded a basement carpark.  It is intended to create a largely unobstructed passage for overland flow from the west to the east of the land.  Its purpose is achieved by constructing the building on concrete piles  creating an area between NGL and the underside of the ground floor or CP1 Level floor slab.  The height of the area varies between 1.6m and 2.00m, it is not enclosed by walls, it does not include any habitable rooms or spaces and the area is “not trafficable for pedestrians or vehicles, nor is it structural in nature”.[2]

   [2] Roads Affidavit, filed 26 May 2014, para 12

1. As to the top area, the communal area and plant deck are clearly shown on drawing A1-208.  There is no roof directly above these areas.  There are rooves on the lift shaft and the stairwells.  The communal area and plant deck will be on a floor or slab but there will not necessarily be a slab at other parts of this level; the area above the ceiling of the Level 7 apartment “could be trussed”.[3]  Mr Hinson QC and Mr Trotter contend that

by itself the floor for the communal area and the plant deck, ‘has no significance other than identifying that there is a floor level’[4]

and I think that is correct.

[3] Scott Whiteoak T1-14, 17, 19, 20

[4]Para 24

1. The Applicant’s case is that each area is “a space within (the) building” and therefore a storey.  The bottom area commences at NGL and that level is a floor level and there is a floor level (CPI) “next above it”.  The top area is determined by reference to the fact that the communal area and plant deck necessarily have a “floor level” which is the “floor level next above” the Level 7 floor slab and the only way that can be accommodated by the definition is as the start of another storey.  Alternatively there is a roof “above” the area.  “Above” does not mean “directly above” but “higher than” and the rooves capping the lift shaft and stairwells are higher.

1. The Respondents contend that these arguments involve a stretched interpretation of the facts and the definitions.  Neither area is  story because it is not a “space within (the) building”.  The bottom area is a space below the building, outside the building and NGL is not a floor level.  The top area has a floor but does not have a floor level or a roof above it; it is on top of the building, not within it.

The bottom area

1. Mr Gore QC submitted by reference to the definition of “ground storey” that

City Plan rejects the notion that the count commences at the first ‘finished’ ground level [5]

and that the term “ground storey” is not applicable when determining the overall height of a building in storeys which “confirms that the count for the purposes of determining the overall height of a building in storeys commences at NGL, even if that is below the finished ground level of a building”.[6]

[5] Outline para 37

[6] Outline paras 37, 38

1. I agree with the submissions of the developer and the council that this area is not a “space within (the) building” for the purposes of the definition of “storey”.  It is a space below and outside the building between NGL and the underside of the ground level slab of CP1.  It is an overland flow path for stormwater; it is not a space “between one floor level and the floor level above it”.

1. This is consistent with the interpretation adopted by Skoien SJDC in Cox v Maroochydore Shire Council[7] where the definition of “storey” was similar although it did not include the words “and commencing at ground level”.  The space there was 1.5m high and was used to store seats and video speakers and access was gained via an external door.  His Honour said

[143]… the oddity involved in considering this space as a storey because it does not fit into any of the exclusions is avoided because in my opinion it does not, to begin with, fit into the inclusive words of the definition of ‘storey’.  While it is situated below ‘the floor level next above’ (the theatre floor level), I do not see it as being (in the ordinary use of the English language) between that floor level and another floor level.  In the context of a habitable building such as a detached house, a floor level must surely mean a floor which is available to be used, to be walked on normally by adult human beings.  The floor of the space with which I am dealing could not be walked on by adult human beings.  Quite clearly it can only be used to support machinery and equipment and, periodically, to allow mechanics or technicians to get access to the machinery and equipment, and when they do that they could not do so by walking normally, that is walking erect.

[7] [2006] QPELR 628 at 634-635

1. The facts that the definition of “storey”

   (a)        does not prescribe any height between levels

   (b)        does not require that a storey have a use

   (c)        does not exclude a space at the bottom of the building on any grounds and

   (d)        does not require that the space be enclosed

   are not, in my view, a sufficient reason to conclude that the area is “a space within a building”.  They do not warrant a departure from the approach adopted by Skoien SJDC, nor can the definition of “ground storey” convert a space outside a building to one within a building.

1. Mr Gore also relied on the following passage from the judgment of Samuels JA in Leichardt M.C. v Daniel Callaghan Pty Ltd[8]

   [8] (1981) 46 LGRA 29 at 37, Reply Outline, paras 16, 17

In the context of cl.51 ‘floor’, in its ordinary sense, means level, layer or stratum, rather than ‘the under surface of the interior of a room’ ….or ‘the lower surface of an enclosed space’ …. I think that ‘floor’ in cl.51 bears the meaning attributed to ‘storey’ by the Shorter Oxford English Dictionary, namely, ‘each of the stages or portions one above the other of which a building consists’.  I would add ‘level’ as a current and relevant synonym for ‘stages’ or ‘portions’

but this does not really assist because the definition of “storey” in the Leichardt Planning Scheme Ordinance was quite different to the definition in City Plan.  “Storey” was defined in that case as

a floor other than a floor
(a)         used primarily for storage; or
(b)         used wholly or partly for parking.

1. Mr Hinson on the other hand referred to the fact that Samuels JA also said that “floor” means “an interior level forming part of the structure of the building”,[9] recognising also that the definition of “storey” in that case was quite different to the present.

The top area 

[9] My highlighting

1. Again I agree with the submissions of the developer and the council that this area has no floor level, ceiling or roof above it and is not a “space within” the building rather it is an area on top and outside of the building.  The pergola does not, as submitted by Mr Gore, reinforce the conclusion that the area is a space within the building.  That still sits on top of the building, not within it and structurally the pergola does not amount to a ceiling or roof above the area.   The fact that the communal area and plant deck have a floor which is above the Level 7 floor slab does not overcome the absence of a floor level above the level on which they are situated.

1. The slab upon which the communal area and plant deck are located has no relevant ceiling or roof above it.  I agree with the developer that

There is no common roof which sits over the area relied upon to contend there is a tenth storey.  There is no roof over part of the open space area.  While the lift shaft and stairwell areas are roofed, each is specifically excluded from the definition of ‘storey’.  Finally there is no roof over the plant area.[10]

[10] Written submissions, para 37(c)

1. The rooves over the lift shaft and stairwells are relied on by the Applicant as constituting a “roof above”, in the sense of being higher than, rather than over, the communal area and plant deck.  In my view, in the present context and notwithstanding the decision in Leichardt M.C. v Daniel Callaghan Pty Ltd, supra, “roof above” does not include such higher rooves, more so when the lift shaft and stairwells are excluded from “space” considerations for the purposes of the definition of “storey”.

1. There is no “floor level next above” the floor level for the communal area and plant deck, nor is there a ceiling or roof above that floor level.  Notwithstanding that the definition of “gross floor area” recognises that a plant room and roof deck may be part of a floor level, the definition does not compel a conclusion that the higher rooves of the lift shaft and stairwells constitute a “roof above” the place where the communal area and plant deck are located.  In fact, the definition recognises that a roof deck may be an outdoor space “on” not “in” a building.

1. In Leichardt M.C. v Daniel Callaghan Pty Ltd, supra, the facts, as summarised by Mr Gore, were that

a proposed 30-unit building was to be stepped back into a cliff running through the middle of the site, such that it would contain 7 levels at the southern end and 5 levels at the northern end, but where there was no part of the building which rose from the ground in the vertical plane for a distance of more than 3 levels.  The Court of Appeal held that the trial judge erred in law concluding that the proposal was only a 3 storey building.

1. Samuels JA said at p 37

But the phrase ‘one above the other’ does not mean ‘one directly above the other’, because ‘above’ does not ordinarily mean ‘directly above’ i.e. in precisely the same vertical plane, but only ‘higher than’.  Usually, it is true, the floors, storeys or levels of a building are found directly one above the other or others; but this circumstance cannot determine the meaning ordinarily given to those words.  The idea of multiple or comparative levels involves differences in the horizontal plane.  Hence a difference in level is established whenever one object, assuming a common datum point, is higher or lower than another.  In that event there are two levels, even though the higher level is not superimposed directly above the lower.  Assume a building, stepped back into a rising slope with ten ‘steps’ incorporated in its structure, none of which is directly above the ‘step’ below, in the fashion of the treads and risers of an ordinary staircase.  I do not see how it would be possible to conclude otherwise than that this was a building which contained ten levels or floors; the alternative being to say that it contained only one.

1. These words were used with reference to a stepped building whereas the present building is one where “the floors, storeys and levels… are found directly one above the others” and Mr Gore conceded that the physical characteristics of the two buildings are quite different. 

1. Effectively what Mr Gore was endeavouring to do was make structures, by themselves not able to be taken into account in determining whether the area is a storey, determinative of the fact that the area is a storey merely because they are higher than, and thereby above that area.  In Leichardt what was above the level below was in fact a storey unlike the rooves relied upon in the present case. 

1. The higher rooves of the lift shaft and stairwells are not, by that fact only, coupled with their location on the same level, sufficient to make the space occupied by the communal area and plant deck a storey.   

1. The definition of “storey” in the draft City Plan 2014[11] also does not assist the Applicant because, in my view, the roof top area would not be a storey within that definition.

   [11] See 45

1. Carey v North Sydney Council [1999] NSW LEC 174 was relied on by Mr Gore but the definition of “storey” was different and the issue was whether “as a matter of building form” a “two storeys plus attic” dwelling  was “materially different from a three storey residential flat building”.  Similarly in Wunsch v Rockdale City Council (2002) 121 LGERA 383 an attic was “effectively subsumed in the roof structure thereby not giving the impression of a double storey building”.  Both decisions are of limited assistance in deciding the present issue.  Likewise the facts in Nader v Sutherland Shire Council [2008] NSWCA 265 were quite different to the present. Young CJ in EQ said

46.Accordingly, when one looks at the consent and the plans as a matter of common sense, and with an objective assessment construed liberally, it seems to me that the only way one can construe the development consent is that it was for a two-storey building with nothing to be on the roof that was part of the dwelling area.

Similarly I am unable to construe the present drawings as representing factually, anything more than an 8 storey building.

1. I am also unable to agree with Mr Gore that the rooftop area “quite evidently presents as a storey”[12] rather it presents to me as something on top of the building.  In any event, I agree with the developer that it is irrelevant how the building presents and that the application should be assessed in accordance with the planning scheme.  “Roof” is not defined in City Plan and for present purposes I think part of the Macquarie Dictionary definition assists, namely “the external upper covering of a building or something which in form or position resembles the roof” of a building.  These are conventional meanings for the term and, to adopt the words of Skoien SJDC in Cox, supra, represent the “ordinary use of the English language”.  The Applicant’s argument fits neither meaning.  The rooves of the lift shaft and stairwells are rooves above those structures, not the building or the communal area and plant deck.

Result

[12] Outline, para 21

1. For these reasons the Applicant has failed in having the preliminary issue resolved in its favour and  I make the following orders

1.         I declare that the development application, the subject of this proceeding, is for a building of 8 storeys in height for the purposes of Brisbane City Plan 2000.

2.         I declare that the development application was a code assessable application.

3.         I reserve the costs of the application.