Reported Decision : 117 LGERA 51 Land and Environment Court of New South Wales CITATION : GTAA P/L v South Sydney City Council [2001] NSWLEC 213 APPLICANT: GTAA P/L PARTIES : RESPONDENT: South Sydney City Council FILE NUMBER(S) : 10105 of 2001 CORAM: Bignold J KEY ISSUES: Development Application :- meaning of floor space ratio controls in DCP - Determination of question of law as a preliminary matter. LEGISLATION CITED: South Sydney Development Control Plan 1997 CASES CITED: Gill v Donald Humberstone and Co Ltd (1963) 1 WLR 929· Hecar Investments No 6 Pty Ltd v Lake Macquarie Council (1984) 53 LGRA 322 DATES OF HEARING: 23 August 2001 EX TEMPORE JUDGMENT DATE : 08/23/2001 APPLICANT Mr M Baird, Barrister SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT: Mr G Green, Solicitor SOLICITORS Pike Pike and Fenwick JUDGMENT: IN THE LAND AND Matter No. 10105 of 2001 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 23 August 2001 GTAA PTY LIMITED Applicant v SOUTH SYDNEY CITY COUNCIL Respondent JUDGMENT Bignold J: A. INTRODUCTION 1. In his opening address in these class 1 proceedings involving an appeal against the Council's deemed refusal to a development application for the demolition of an existing industrial building and the erection of three attached buildings to provide boarding house accommodation on land known as Nos 17/29 Dick Street, Chippendale, the Solicitor for the Council raised the question whether the floor space ratio controls contained in the South Sydney Development Control Plan 1997, Part E (the DCP) operated in the present case to render applicable the "bonus floor space incentive" referred to at p 81 of that document. 2. The Council contended that the bonus incentive provision was not applicable to the present development with the consequence that the principal control on floor space ratio was that the ratio prescribed by the DCP fixing a maximum floor space ratio for this part of the City at 1.5:1 applied, without the possibility of the ratio being increased by the 0.25:1 bonus provision. Floor space ratio is dealt with in section 2.2 at p 81 of the document that I have identified and it sets forth an objective, performance criteria, and finally controls. 3. The controls relevantly provide as follows— The floor space ratio does not exceed the maximum floor space ratio indicated in the floor space ratio map of this DCP—and I interpose here, it is common ground that the maximum floor space ratio indicated on the map for this part of the city is 1.5:1— then the text continues: A bonus floor space incentive of up to 0.25 to 1 of the total site area may be applicable to sites requiring the provision of: · dedication of public open space, including plazas, atria spaces etc in addition to s 94 requirements; · through site links in large development sites; · public art; · street closures; and · other works or improvements at the discretion of Council. 4. It is common ground that the proposed development and development site in the present case does not attract or involve any one of the first four dot points that I have just enumerated. 5. Counsel for the Applicant has submitted that the final dot point criterion can be invoked in the present case, namely—"any other works or improvements at the discretion of Council". 6. Counsel for the Applicant has submitted that the words, "any other works or improvements" were wide in import and the breadth of those wide terms may itself even be extended by the final words in the phrase "at the discretion of Council". He has drawn attention to the dictionary definition of, "improvement", including the fifth meaning noted in the third edition of the Macquarie Dictionary as meaning, "bring into a more valuable or desirable condition as of land, a making or becoming a betterment". 7. He has also helpfully referred to a decision recently given of Sheahan J in a case Williams v Blue Mountains City Council [2001] NSWLEC 73 where his Honour was asked to determine whether a pond was capable of being the subject of a building certificate issued under the Environmental Planning and Assessment Act 1979. 8. Counsel for the Applicant also has relied upon the fact that the Council's planning servants in assessing the development proposal last year acknowledged in their written report the applicability of the bonus incentive component of the floor space ratio control by dint of the fact that the proposed development, being the elimination of an industrial building and the substitution by new development comprising three attached boarding houses providing accommodation for up to 27 rooms, was an example of a development conferring a community or public benefit by the provision of low-cost rental housing. 9. The Applicant's Counsel also has drawn attention to the fact that the Council's consultant planner Mr Blythe, in his report which has been tendered in evidence, also appears to have accepted the legitimacy of applying the bonus incentive provision to the floor space ratio control. 10. The Council's Solicitor, in his competing argument, has submitted that the views contained in the Council's planning staff appraisal of the matter, and the views of Mr Blythe as to the availability of the bonus floor space incentive, in truth are not determinative of the proper interpretation of the text of the DCP. Without intending any discourtesy to the planners who have expressed their views, that submission is undoubtedly correct. The proper meaning of the DCP is a matter for the Court's determination. 11. The issue to be determined by the Court, as a preliminary issue (as tendered ultimately by the parties) is what is the true meaning of the relevant floor space ratio controls contained in the DCP? Although expressed in terms not typical of legislative or similar statutory language, nonetheless the provision is expressed in language which is capable of interpretation, and I apply to that task, the flexibility and practical approach to construction adopted by Lord Reid in the 1963 House of Lords' decision of Gill v Donald Humberstone and Co Ltd (1963) 1 WLR 929, a decision that has often been cited and applied by this Court in interpreting provisions of planning instruments and development control plans eg Hecar Investments No 6 Pty Ltd v Lake Macquarie Council (1984) 53 LGRA 322. 12. I have come to the conclusion that the words of the text are not capable of supporting the construction urged upon me on behalf of the Applicant. Even if the relevant controls were to be interpreted in isolation from other provisions of the DCP there would, in my view, be insuperable difficulty in interpreting the text in a manner that would enable the proposed development, by virtue of its own character or type, to qualify for the bonus incentive provision, unless it and the development site provided the requisite facilities or possessed the requisite characteristics, enumerated in the text. 13. The words, "works or improvements", are undoubtedly wide as Counsel for the Applicant has properly submitted, but they are governed by the adjective, "other", which indicates that there are considerations of context which would narrow the relevant words, and those considerations are that the other works or improvements are of a kind as are mentioned in the preceding four dot points in the provision. 14. The question, however, is considerably clarified by aid of reference (strongly relied upon by the Council's Solicitor) to the provisions of Part C of the DCP dealing with the subject of "public domain", a term that is defined with its express objectives stated, at p 23 and following of the DCP. 15. Significantly, the text of Part C dealing with "public domain" under the heading, "Implementation", at p 27 and following, deals specifically, inter alia with the question of "floor space ratio bonus incentives" when it provides: Council may provide floor space incentives to developers through negotiations during the development application process for the provision of significant additional public spaces or other material benefits to the community in accordance with the initiatives outlined in this plan. It then states the provision of the bonus floor space incentive that might be applicable to development sites and it then quotes the precise language of the text at p 81 of the DCP dealing with bonus floor space incentive (that I have earlier recited). 16. It is apparent from consideration of the text of Part C, and in particular that part of it dealing with Precinct 11 "Western Districts Public Domain Plan" in which is situate the development site, that no "public domain works" are identified on the development site or indeed anywhere else in Dick Street. 17. Accordingly, the interpretation of the floor space ratio controls that I have adopted is confirmed by the text of the DCP dealing with "public domain" set out in Part C of the document, which confirms the interpretation that I have adopted. 18. In the circumstances, and on the common facts, I accordingly hold that, properly construed, the bonus floor space provisions contained in Part E of the DCP are not available in the case of the present development application. BAIRD: In light of your Honour's ruling, I would make an application for an adjournment for a period of time to enable the Applicant to then reassess the matters in light of your Honour's judgment on that point. I can address, if your Honour so desires. HIS HONOUR: No I understand. You foreshadowed that application before lunch Mr Baird. I don't, at this stage, require you to elaborate. Mr Green, no objection? GREEN: No your Honour. I don't have instructions from the Council officers here today but we don't want to put any matter with respect to that at this stage. HIS HONOUR: I think that fairness would require that the Applicant be given an opportunity to reassess his position in this development appeal. Obviously I have made it clear that the ruling doesn't mean that it is legally impossible for consent to be granted. I am sure Mr Baird will make that very clear to his clients, but the ruling which has been adverse to the case put by the Applicant, clearly means that the Applicant has to consider its position in the light of that ruling. If it wishes to proceed with its case, it now realises that it has to satisfy the Court that the exceedence of the floor space ratio starts from whatever it is, minus 1.5 to 1 and not 1.75 to 1 for example. So that obviously is a matter that the Applicant will need to get some advice on, both (no doubt legal) and technical and it should have that opportunity. I will order the transcript of my judgement so that it will be published in written form. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.