The Queen v City of Hobart, Ex Parte Beck

[1988] TASSC 28

[1988] TASSC 28

CITATION:              The Queen v City of Hobart, Ex parte Beck [1988] TASSC 28; A16/1988

PARTIES:  THE QUEEN
  v
  CITY OF HOBART, EX PARTE BECK

TITLE OF COURT:  SUPREME COURT OF TAMANIA
FILE NO/S:  M110/1988
DELIVERED ON:  13 May 1988
JUDGMENT OF:  Green CJ

Judgment Number:  A16/1988
Number of paragraphs:  13

Serial No 16/1988
List "A"
File No M110/1988

THE QUEEN v CITY OF HOBART, EX PARTE BECK

REASONS FOR JUDGMENT  GREEN CJ

13 May 1988

1. The prosecutor wishes to construct six what he describes as houses, but which I shall refer to by the more neutral term "dwellings" on property situated in Hobart.

1. Section 734(7) of the Local Government Act 1962 provides as follows:–"

"Subject to any provision to the contrary in an interim order, a person shall not undertake any development of any land to which that interim order relates unless that person has obtained planning approval in relation to that development."

1. It is common ground between the parties that the City of Hobart Planning Scheme 1982 has been adopted by an interim order of the kind referred to in that subsection, that the subject land is land to which that interim order relates and that the construction of the dwellings would constitute a "development" of that land within the meaning of that subsection.  Pursuant to s2.1 of the scheme, the prosecutor made an application to the Corporation for approval of the development. The Corporation concedes that the application was in conformity with the formal requirements of the scheme, but has declined to entertain it on the ground that s733B of the Local Government Act 1962 applies to the application and that the provisions of that section have not been complied with. The prosecutor concedes that the provisions of s733B have not been complied with, but contends that they are not applicable to this application and accordingly obtained an order from this Court requiring the Corporation to show cause why a writ of mandamus should not issue "commanding it to consider and determine" the prosecutor's application.

1. The parties are agreed that the determination of the question of whether or not s733B applies to the application turns upon the question of whether the dwellings the subject of the application are houses within the meaning of the scheme.

1. The following definitions appear in the scheme:–

"'house' means a dwelling unit or a dwelling unit and ancillary flat together with usable landscaped space which:

(a)       is private to, adjoins and serves only the dwelling unit,

(b)is directly accessible from the dwelling unit at a height of not more than 1.5 metres above or below the floor level of the dwelling unit,

(c)has a minimum area of 35 square metres and a minimum horizontal dimension of 3.5 metres,

but excludes a holiday unit.

'dwelling unit'   means a building or part of a building which is used or intended, adapted or designed for use as a self–contained unit for cooking, eating, sleeping and living purposes.

'usable landscaped space'         means outdoor areas developed for enjoyment by the purpose of individuals, and excludes areas set aside for services appurtenant to residential development or for use by motor vehicles."

1. The dwellings which are the subject of the application are described in the following paragraphs of an affidavit sworn by the prosecutor’s architect:–

"6.The plans lodged with the application for planning approval show six houses which conform in every respect with the definition of 'house' in the City of Hobart Planning Scheme 1982. In particular the plans provide for each house to have an outdoor area in addition to areas set aside for services appurtenant to the development and for the use of motor cars. Each house has an outdoor area which is private to, adjoins and serves only that house, is directly accessible from that house at a height of not more than 1.5 metres above or below the floor level of that house and has a minimum area of 35 square metres and a minimum horizontal dimension of 3.5 metres.

7.Because of the particularly steep site I considered the only practical way to provide a usable outdoor area for each house was to step the houses down the hill and locate the outdoor area for each house on top of the house below as shown on the plan. The plans provide that each such outdoor area will be landscaped."

1. The prosecutor submits that the proposed dwellings conform in all respects to the definition of "house". The Corporation submits, inter alia, that even if each outdoor area referred to by the architect is "usable landscaped space" it does not satisfy the requirements of the definition of "house" because it is not usable landscaped space which is “private to, adjoins and serves only the dwelling unit”. I turn to consider that issue first.

1. I am satisfied that in each case the area claimed to be usable landscaped space "adjoins" the relevant dwelling unit and thus the determination of this question turns upon the issue of whether the area is "private to ... and serves only the dwelling unit".

1. As "house" is exhaustively and precisely defined in the scheme I do not think that I should be influenced by the usual connotation which that word bears. The provisions of principle 23 of what are called in the scheme principles of development control and s1.5.3(b)(v) of the scheme suggest that the draftsman contemplated that “usable landscaped space” is an area of ground, but they do not exclude the possibility that it could include an area which extends over the top of another building. No authorities as to the meaning of the phrases which I am required to construe have been cited.

1. The prosecutor contends that an area which serves only the dwelling unit which it adjoins as usable landscaped space does not cease to be within the definition of "house" merely because that area also serves another dwelling unit for some purpose other than as usable landscaped space. But in my view, acceptance of the prosecutor's contention would involve limiting what I take to be the prima facie meaning of "serves only" by notionally adding qualifying words such as "as usable landscaped space". Nothing in the words used, their context or in the purposes of the scheme persuades me that I would be entitled to impose such a limitation or qualification upon what I regard as the prima facie scope of the meaning of the phrase.

1. Assuming in the prosecutor's favour that the word "areas" appearing in the definition of "usable landscaped space" is not confined to pieces of ground but also includes structures, I define the word as meaning any pieces of ground or any structures which have been developed for the purpose of enjoyment by individuals together with the airspace above those pieces of land or structures. That definition would apply a fortiori to the decks in this case which actually constitute the usable landscaped spaces and without which those spaces would not exist. In my view, an outdoor area which is constituted by a deck which serves both as the usable landscaped space of dwelling unit "A" and as part of the roof of dwelling unit "B" cannot be said to be "private to" or to serve only dwelling unit "A".

1. It is also arguable that the decks are not within the definition of "usable landscaped space" because insofar as they are structures which have been designed to function as roofs they could not be regarded as having been "developed for the purpose of enjoyment by individuals" as required by the definition.

1. I hold that the proposed top four dwellings are not houses for the purposes of the scheme, and that therefore the Corporation was correct in declining to entertain the prosecutor's application for development and that accordingly the application for the issue of a writ of mandamus should be dismissed. Different considerations apply to the bottom two dwellings, but as no separate application was made to the Corporation or to this court in respect of them, I doubt whether that could affect the result. However, I shall hear counsel further about that aspect of the matter before pronouncing any final orders.