Land and Environment Court of New South Wales CITATION: Bertino Pty Ltd v Concord Council [1999] NSWLEC 242 PARTIES APPLICANT Bertino Pty Ltd RESPONDENT Concord Council NUMBER: 10570 of 1999 CORAM: Sheahan J KEY ISSUES: :- Question of Law - Preliminary Question of Law - whether proposed development is prohibited Characterisation and Interpretation - proper characterisation of the proposed development - whether a flat or dwelling house LEGISLATION CITED: Concord Planning Scheme Ordinance DATES OF HEARING: 09/23/1999 DATE OF JUDGMENT DELIVERY: 10/22/1999 APPLICANT Mr G Newport SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT Mr J Ayling SOLICITORS Lorton Duke & Co JUDGMENT: IN THE LAND AND Matter No: 10570 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 22 October 1999 BERTINO PTY LIMITED Applicant v CONCORD COUNCIL Respondent JUDGMENT Introduction 1. This judgment deals with a preliminary Question of Law of crucial significance to the success of this Class 1 appeal, filed on 23 July 1999, against the deemed refusal of development application 181/99 concerning No.154 and No.154A George Street, North Strathfield. 2. It is agreed between the parties that the Concord Planning Scheme Ordinance (" CPSO ") is the relevant environmental planning instrument, and extracts from it were placed before the court during the hearing. 3. The Statement of Issues, filed on behalf of the Council on 13 August 1999, asserts that " The proposal is contrary to the provisions of Draft Local Environmental Plan No.109 which seeks to prohibit 'group dwellings' within the current zoning of the subject site ", and that " The proposed development is contrary to the Concord Planning Scheme Ordinance ", and also contrary to " Council's Code for the Erection of Residential Flat Buildings and Boarding Houses ". 4. As originally posed on 3 September 1999 the question was " whether as a matter of law the development proposed by the Applicant is prohibited under the provisions of the Concord Planning Scheme Ordinance ". 5. In its second formulation dated 13 September 1999 the Court was asked to determine the question of " whether the issue as to whether the development proposed by the applicant is prohibited involves a question of law, to wit, the meaning in the Concord Planning Scheme Ordinance of the words defining the words 'residential flat building'". The development proposed 6. The parties and the court are agreed that the issue before the court does not turn on what others may call the project, but on what the court finds is its correct characterisation. 7. In the development application the proposed development was described as " residential two storey brick cottages with tiled roofs, metal sheds and garages ". The Statement of Environmental Effects submitted with the application refers to group dwellings on lots A & B in deposited plan 408009, at 154 and 154A George Street, Concord West. 8. The subject site has an area of 4053 square metres and is " generally regular " in shape, being " about 30 metres wide and about 136 metres deep ". It is zoned residential 2(a) pursuant to the CPSO. A dwelling house and associated residential structures are located on both lot A and lot B. The rear of the subject properties is aligned to a public reserve. 9. It is proposed to consolidate the two lots, demolish the two existing dwelling houses, and erect 15 free standing two storey dwelling houses, in the formation depicted in Exhibit C1 , which may be shortly described as comprising 8 detached small dwelling houses on one side, and 7 detached dwelling houses, together with shared visitors parking, recreation area and pool facilities, on the other side of a common linear accessway. 10. There will be 7 " type A " dwellings and 8 " type B " dwellings. Both models comprise a number of bedrooms (A = 4 and B = 3) and two bathrooms (one an en suite) on an upper level (described in the case of type A as " first floor " and in the case of type B as " loft level "), and, on the ground floor level, a two car garage, lounge, dining, entry, kitchen, toilet and laundry facilities. 11. Extensive landscaping is also proposed. 12. Paragraphs 5, 6 and 7 of the Agreed Statement of Facts say: 5. The houses do not contain within them any separate self-contained accommodation (for example in the nature of a ' granny flat ') and are adapted for occupation by a single family. 6. Each house is provided with one enclosed private courtyard, accessible from within the house. Courtyard fences extend across the spaces between the houses, from wall to wall, except at the end of rows and where one of the rows is interrupted by a common area . 7. Towards the centre of the subject land a common recreation area, which includes a swimming pool, is provided. In the same area are three car spaces designated on the plans as visitors' parking. Further areas of land which are intended as common areas are situated at the George Street frontage (on either side of the entry to the common accessway) and at the rear of the land between the end of the carriageway of the accessway and the rear boundary. Small areas of land, which appear from the plans to be intended to be in common ownership, also occur in front of houses between front walls and the carriageway of the accessway. Relevant provisions of the CPSO 13. Clause 23 of the CPSO deals with " Erection or use of buildings or works " and presents the zoning table in the traditional form. 14. In respect of " 2. Residential (a) Residential 'A' " the tabular presentation is as follows: Column II - Purposes for which buildings or works may be erected or carried out or used without the consent of the responsible authority - Dwelling-houses; home-based child care services. Column III - Purposes for which buildings or works may be erected or carried out or used subject to such conditions as may be imposed by the responsible authority - … Column IV - Purposes for which buildings or works may be erected or carried out or used only with the consent of the responsible authority - Any purpose other than those permitted by Column II or prohibited by Column V. Column V - Purposes for which buildings or works may not be erected or carried out or used - …residential flat buildings other than residential flat buildings Class A … 15. The dimensions of the subject site comply with the specifications in cl 4.2. 16. Relevant definitions in cl 4 of the CPSO are as follows: 'Dwelling-house' means a building designed, constructed or adapted for use as a dwelling for a single family but does not include a flat. 'Flat' means a room or suite of rooms occupied or used or so designed, constructed or adapted as to be capable of being occupied or used as a separate domicile and includes a group dwelling but does not include a dwelling-house. 'Group dwelling' means a building designed, constructed or adapted for use as a dwelling for a single family which forms part of a group of two or more dwellings such as are commonly known as group houses, villa homes, town houses, semi-detached or terrace buildings and the like. 'Residential flat building' means a building or group of buildings containing two or more flats. 'Residential flat building Class A' means a residential flat building containing not more than two flats and includes buildings commonly known as duplex flats, maisonettes or semi-detached cottages. 'Residential flat building Class B' means a residential flat building containing more than two flats in a group such as are commonly known as group houses, villa homes, town houses, terrace buildings and the like. 17. These definitions freely use the word " dwelling " but that word itself is not defined in the document. The Arguments 18. Mr Ayling on behalf of the Council placed before the court a number of dictionary definitions of the word " dwelling " viz: Macquarie Dictionary: " a place of residence or abode; a house; continued or habitual residence ". Shorter Oxford English Dictionary: " a place of residence; a dwelling-place, habitation, house ". Dwelling-house is defined as " a house occupied as a place of residence "; and dwelling-place as " a place of abode ". Cambridge International Dictionaries: " places where people can live ". Merriam-Webster 'WW Webster Dictionary' " a shelter (as a house) in which people live ". Hypertext Webster Gateway: " habitation; place or house in which a person lives; abode; domicile ". WordNet: " a physical structure (eg a house) that someone is living in ". Wordsmyth " a shelter used for long-term residence; abode; house ". 19. Mr Ayling's fundamental submission is that the subject proposal is prohibited by the CPSO because it is a residential flat building which is not Class A. The proposal has several " units " of accommodation which are separate and free-standing. None is attached to another, and there is only one " dwelling " per envelope. 20. Dwelling house is defined so as not to include a flat, and " flat " is defined so as to include the word " domicile " and " group dwelling ", but not " dwelling house ". Group housing contemplates an element of attachment among the dwellings, and a dwelling within a group dwelling must, therefore, be a flat. The form of a group dwelling is not crucial to the inclusion of a proposal within the definition. The definition envisages a group of two or more dwellings, but a residential flat building Class A envisages a group of not more than two flats. 21. Mr Ayling submits that, correctly interpreted, the CPSO seeks to limit to one dwelling house or no more than two flats on appropriate single blocks of land. Each of the 15 free-standing houses to be put on the two subject blocks of land is " patently designed for use by a single family, or at the very least is adapted for that use. Each therefore satisfies the definition of 'group dwelling'". From this he draws a conclusion that a group dwelling is a " flat " and not a dwelling house. He, therefore, says the correct characterisation of the proposal is the erection of a group of buildings containing 15 flats and it is, therefore, for a residential flat building which is not Class A. Accordingly, his submission is that the proposal is prohibited. 22. Adopting the " ordinary everyday meaning in its context " of the word " dwelling ", one arrives at the conclusion that it is " a place where someone lives ". Such an interpretation is consistent with the meaning given to the term " group dwelling ", in cl 4. 23. The CPSO is in such specific terms that an innominate use amounting to " a group of dwelling houses " would not be reflected by the general tenor of the instrument and so must be presumed not to have been intended by the draftsman. 24. Mr Newport, on behalf of the applicant , submits that a project of 15 free-standing houses in a group must be a Column IV use being one of " all other purposes not defined ". 25. Mr Newport contends that each such house fits comfortably within the definition of dwelling house, as defined in the CPSO, and as each is a dwelling house, each cannot be a flat. In the absence of any flat among the proposal, the proposal cannot be for a residential flat building at all. An essential prerequisite of a residential flat building is that there be two or more flats. 26. The definition of flat includes a group dwelling, but not a dwelling house. If the term dwelling included a dwelling house, it would make each flat a dwelling house and render the definition of flat meaningless. Mr Newport contends for the definition of dwelling in its context to mean a flat as distinct from a dwelling house. Consideration 27. In Wernax Pty Ltd v Marrickville Council [1997] NSWLEC 211 Talbot J dealt with a somewhat similar factual situation. The applicant was seeking in Wernax development consent to construct 8 Torrens Title group dwellings with on-site basement carparking. 28. Residential flat buildings (with certain irrelevant exceptions) were prohibited within the relevant zone. The proposal was for the construction of 8 grouped dwellings of town-house style in a configuration of 5 dwellings along the Albany Road boundary of the site and 3 within an existing church building to the rear of the site. The Council relied heavily on the commonality of use of certain areas of the basement level where parking was to be provided. 29. Talbot J expressed the view that the question of whether the proposed building when erected would be a residential flat building was a question of fact. 30. The applicant contended that what was proposed was a number of dwellings answering the description of a group dwelling in the planning scheme. The Council contended that the development should properly be regarded as a building containing 2 or more dwellings, in one case 5 and in the other 3, situated on a single allotment of land. 31. The applicant in that case conceded, as does the applicant in this case, that the mere fact that the development could be seen to fit the definition of a group dwelling would not save it from being prohibited if it was otherwise a residential flat building ( Egan & Ors v Hawkesbury City Council & Anor (1993) 79 LGERA 321). 32. The allotments were to be held in separate private ownership, delineated by boundaries reflecting that habitable areas above the ground, including the separate dwellings and courtyard areas. 33. Talbot J considered the proposal against the background that the definition of residential flat building had three components - the development must comprise a building, the building must contain two or more dwellings, and the building must be situated on a single allotment of land: Either the building and all the dwellings within it are owned by one owner who is the registered proprietor of the single allotment upon which the building stands, as in the case of a block of flats or, as in the case of a development generally described in common parlance as a block of home units, there is common property upon which the building is constructed comprising one allotment of land upon which a number of dwellings have been constructed in a single building. 34. His Honour concluded that the situation " might be regarded as no different to a subdivision where two houses are constructed on adjoining blocks of land with a shared driveway, facilitated by complimentary rights of carriageway ". He was satisfied that: … in theory at least, the development can be regarded as something other than a building containing two or more dwellings situated on a single allotment of land. I do not stay to consider whether the scheme proposed by the applicant is feasible. I do not tarry to consider what merit issues may arise as a consequence of the proposed title arrangements. … I am therefore disposed at this point to hold only that the Court is satisfied that the development as proposed is capable of being regarded as something other than a residential flat building provided that development ultimately proceeds on the basis that any building containing a dwelling is to be constructed within the boundaries of a single allotment of land. 35. What is proposed here is the consolidation of the two lots of land into one site for the construction of 15 independent residences, having some common facilities. 36. Section 33 of the Interpretation Act 1987 makes it clear that the court must prefer "a construction that would promote the purpose or object underlying " the CPSO " whether or not that purpose or object is expressly stated ". The terms of a planning instrument should not be construed as strictly as one would interpret an Act of Parliament, see G & A Lee and J & A Cormack v Pittwater Council (No.10677 of 1995 Talbot J, 20 June 1996). 37. In Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 the High Court said (at 304-5): It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say … Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking ' nothing remains but to give effect to the unqualified, words' … There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case … However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. Conclusion 38. The CPSO envisages on a single block of land the construction of only a single dwelling house, or a single building containing no more than two flats. 39. It would seem to me to be totally " irrational ", in the terms of Cooper Brookes , that the CPSO or any instrument should be construed in such a way that it would in terms allow only the construction, on a single block of land, of one building provided it was either a single dwelling house or a combination of two flats and nothing more extensive, but would, by way of the device of " innominate use ", allow the construction, on the same block of land, of 15 separate self contained dwelling houses. 40. I have come clearly to the view that the subject proposal is prohibited by the instrument. I, therefore, answer " yes " to the question of law posed in par 4. In those circumstances, it is not necessary for me to answer the question posed in par 5. 41. Whereas this conclusion might dispose finally of the appeal, I direct that the matter be listed before the Registrar for callover on Friday 5 November 1999. 42. Exhibit C1 may be returned. 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