Reported Decision : 109 LGERA 275 Land and Environment Court of New South Wales CITATION : Gilderthorpe Investment v Sutherland Shire Council [2000] NSWLEC 153 APPLICANT: Gilderthorpe Investment PARTIES : RESPONDENT: Sutherland Shire Council FILE NUMBER(S) : 10226 of 2000 CORAM: Bignold J KEY ISSUES: Question of Law :- Preliminary determination - whether proposal is "townhouse" development - meaning of requirement - that each dwelling have individual access. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 Clindo Pty Ltd v North Sydney Council (unreported 12 April 1996)· ; CASES CITED: Doyle v Newcastle City Council (1990) 71 LGRA 55; Hope v Bathurst City Council (1980) 144 CLR 1; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 DATES OF HEARING: 23/06/00 DATE OF JUDGMENT: 07/18/2000 APPLICANT: Mr G Newport, Barrister SOLICITORS Nil LEGAL REPRESENTATIVES: RESPONDENT: Mr R Wilcher, Solicitor SOLICITORS Baker and McKenzie JUDGMENT: IN THE LAND AND Matter No . 10226 of 2000 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 18 July 2000 GILDERTHORPE INVESTMENT Applicant v SUTHERLAND SHIRE COUNCIL Respondent JUDGMENT Bignold J: A. INTRODUCTION 1. The Council has raised a preliminary question of law in pending class 1 proceedings involving an appeal pursuant to the Environmental Planning and Assessment Act 1979 s 97 (the EP&A Act), against the Council's deemed refusal of a development application for the erection of a building containing seven dwellings on land known as lots 71 and 72 Deposited Plan 16718, also known as Nos 25 and 27 Barraran Street, Gymea (the appeal site). 2. The question of law (which I have rephrased in a dialectic formulation) is whether each of the seven dwellings contained in the proposed development is properly characterised as being development (a) for the permissible purpose of a "townhouse or villa house" or (b) for the prohibited purpose of "residential flat" according to the definitions of those respective terms contained in the Sutherland Shire Local Environmental Plan 1993 (the LEP). 3. A subsidiary question also raised by the Council asks the same question but this time by reference to the same terms but as they are employed in the draft Sutherland Local Environmental Plan 1999 (the draft LEP) which provides the same definitions of "dwelling" and "residential flat" as does the LEP but different definitions of "townhouse' and "villa house" from those contained in the LEP. B. THE RELEVANT FACTS 4. The parties have submitted an Agreed Statement of Facts (Exhibit 1) from which the following relevant facts are extracted:- 1. The appeal site is included within Zone No 2(a1) Residential under both the LEP and the draft LEP. In terms of the LEP, it is not an "internal lot". 2. Clause 18(2) of the LEP specifying "development that may be allowed only with development consent" within Zone 2(a1) Residential includes the following: townhouses, except on internal lots villa houses, except on internal lots 3. Clause 18(2) of the LEP also specifies development which is " prohibited " within Zone No 2(a1) Residential , being " any development other than development included in Item 3 or 4 ". (Item 3 specifies development that is allowed without development consent and Item 4 specifies development that is allowed only with development consent.) It is common ground that " residential flat " (a defined term in the LEP) is prohibited development within Zone No 2(a1) Residential. 4. Clause 6 of the LEP contains " definitions " of various terms employed in the LEP, including the following definitions dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. residential flat means a dwelling within a building containing three or more dwellings but does not include townhouses or villa houses. townhouse or villa house means a dwelling on a site containing three or more dwellings, where each dwelling has an individual entrance and open space for the exclusive use of the occupants of the dwelling. internal lot means a lot the only means of access to which is an access corridor (a hatchet shaped lot) or a right-of-carriageway over another lot. 5. The draft LEP perpetuates the planning controls in respect of the appeal site as currently in force under the LEP. However, the draft LEP separately defines " townhouse " and " villa house " as follows: Townhouse means a two storey dwelling on a site containing three or more dwellings, where each dwelling has an individual entrance and the open space is at ground level or ground floor level for the exclusive use of the occupants of the dwelling. Villa House means a single storey dwelling on a site containing three or more dwellings, where each dwelling has an individual entrance and open space is at ground level and is for the exclusive use of the occupants of the dwelling. 6. The proposed development is fully depicted in drawings DA01-DA07 Issue J (being Exhibit 1 ). According to those plans, the proposed development is a building comprising three floor levels as follows:- (i) lower ground floor level (shown in DA 01) — providing (a) carparking accommodation accessible to vehicular traffic via a dual carriage ramp off Barraran Street; and (b) three dwellings (numbered 5, 6 and 7) each accessible to pedestrian traffic via its own internal/isolated stairway leading from the upper ground level open aired common area or landing which in turn is accessible via a pathway (including steps) from Barraran Street; (ii) upper ground floor level ( shown in DA 02 ) providing (a) the aforesaid common area or landing, (b) the lower levels of four dwellings (numbered 1, 2, 3 and 4) that comprise two levels, and the individual courtyards to each of those dwellings and (c) the internal stairwell system providing access to the car parking accommodation in addition to the three individual, isolated stair wells to each of the three dwellings located on the lower ground floor level; and (iii) first floor level ( shown in DA 03 ) providing the upper levels of each of the four dwellings located on the upper ground floor level. C. THE COMPETING ARGUMENTS 5. Before referring to the competing arguments, it may be helpful to note at the outset that the argument is exclusively focused on but one aspect of the definition of "town house or villa house" contained in the LEP, namely whether "each dwelling has an individual entrance". 6. The Council contends that no individual entrance is provided to each dwelling because pedestrian access to each dwelling is via the common pathway providing access to the building form Barraran Street to the common open air area or landing located on the upper ground floor level from which common area, the front door to each of dwellings (numbered 1, 2, 3 and 4) opens, and from which common area the individual isolated stairways lead to each of the dwellings (numbered 5, 6 and 7) located on the lower ground floor level. 7. The Applicant's competing argument is that the requirement of the definition that each dwelling have an individual entrance is satisfied by the physical features and layout of the proposed development. 8. The Applicant submits that the fact that pedestrian access from Barraran Street to the building containing the dwellings is via a common pathway terminating in a common open air area or landing does not create any want of compliance with the requirement for each dwelling to have an individual entrance. 9. Because the competing arguments are essentially addressing the physical layout of the pathway and common area or landing, it will assist in an understanding of these reasons, if I annex a reduced extract of the plan (DA 02) that depicts the upper ground floor level. 10. In the course of argument, I drew the parties' attention to the Court's decision in Clindo Pty Ltd v North Sydney Council (unreported 12 April 1996) which dealt with a similar question to that raised by the present case. Like the present case, the question was dealt with by way of determination of a preliminary question. 11. That question was whether the proposed residential development fell within the permissible defined purpose of "attached dwellings" or the prohibited defined purpose of "residential flat building" as those terms were defined by the North Sydney Local Environmental Plan. 12. The definition of "attached dwellings" included the requirement that "each dwelling have an individual entrance and access to a courtyard at natural ground level". 13. The similarity between that requirement in the definition of "attached dwelling" and the requirement for each dwelling to have an individual entrance in the definition of "townhouse or villa house" in the present case is obvious. 14. Having drawn the parties' attention to the decision in Clindo, I afforded the parties the opportunity to make any further submissions in support of their competing contentions following their consideration of the decision in Clindo. 15. The Applicant's further submission was that Clindo supported its contentions in the present case, particularly insofar as the decision had held (i) that the requirement for an individual entrance to each dwelling was a requirement in respect of each dwelling and not a requirement in respect of the building (that contained the dwellings) and (ii) that the requirement for an individual entrance to each dwelling did not require individual access to each dwelling. 16. The Council, in its supplementary written submission responded to Clindo by advancing the following propositions— (i.) the facts relevant to access and entrance arrangements in the two cases appeared to be different; (ii.) even if, applying Clindo, the common pathway from Barraran Street to the building is to be regarded as "access" in contradistinction to "entrance", the existence of the common area at the upper ground floor level (i) to which that pathway leads; and (ii) from which opens each of the front doors to dwellings 1, 2, 3 and 4; and (iii) from which opens each of the individual isolated stairways to dwellings 5, 6 and 7, means that there is no individual entrance to each of the seven dwellings in the proposed building; (iii.) again, applying Clindo, the three sets of separate and isolated stairways leading to each of the three dwellings (nos 5, 6 and 7) located on the lower ground floor level are to be regarded as access, and hence do not satisfy the requirement of individual entrance to each of those dwellings; and (iv.) the physical arrangement of the accessways and entrances in the proposed development were typical of such arrangements that are found in residential flat buildings. 17. The parties rely upon their same respective arguments on the subsidiary question that has been raised by the Council, namely whether the proposed development is permissible or prohibited development in terms of the draft LEP except that the Applicant concedes that the proposed development does not fall within the definition of "villa house" in the draft LEP because it expressly limits the dwellings to a single storey, whereas four of the proposed dwellings have two storeys. D. ADJUDICATION ON THE QUESTIONS 18. I would preface my adjudication by firstly, noting (as I pointed out in Clindo) that the preliminary issue raises mixed questions of fact and law in the manner expounded by Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94CLR 509 at 511/512 in a passage adopted by Mason J in Hope v Bathurst City Council (1980) 144 CLR 1 at 7. 19. My determination of the questions raised in the present case will necessarily include any ultimate finding of fact. In this sense, the determination is not confined to a determination of a question of law because to leave any ultimate question of fact unanswered, would be to largely defeat the parties' common objective of seeking the Court's determination of a preliminary issue. Since the parties have fully presented the competing cases on the issue, it is entirely appropriate that the issue be determined at this stage in the proceedings, rather than being left for decision at any further hearing on the planning merits. 20. Secondly, I do not entirely accept the Applicant's submission that the Council's argument lapses into the error (of asking the wrong question in quest of the proper categorisation of a proposed development) that was exposed by the judgment of Cripps CJ in Doyle v Newcastle City Council (1990) 71LGRA 55. 21. In Doyle, the relevant planning instrument in the conventional manner specified certain purposes of development that may be carried out with or without consent. Those purposes included "dwelling-houses" and "home occupations". 22. The same instrument also specified as purposes of development that were prohibited "any purpose other than the nominated purposes". 23. In other words, the nominated purposes were the permissible purposes and the innominate purposes were the prohibited purposes. 24. The Chief Judge, at p 60 found the Assessor had fallen into error by asking himself the wrong question, namely whether the proposed activity fell within the definition of "agriculture", being within the innominate prohibited purposes. The correct question to have been asked was whether the proposed actively fell within one of the permissible purposes of development, namely "home occupation". 25. However, the exposed error in Doyle was not simply that the Assessor had categorised the proposed activity as falling within the definition of "agriculture" (an innominate prohibited purpose). Rather, it was that he failed to appreciate that that innominate purpose was not even relevant if the proposed activity fell within one of the permissible purposes of development, namely "home occupation" (which the Chief Judge found to be the case based upon the Assessor's findings of primary fact: p 60). 26. Of course, it would be an error in the present case for the Council to consider whether the proposed development fell within the defined term "residential flat" being a prohibited development if the conclusion had already been reached that the proposed development fell within the defined term "townhouse or villa house". That anterior conclusion would be determinative. 27. Similarly, it would be an error for the Council to consider whether the proposed development fell within the defined term "residential flat" without first concluding that it did not fall within the defined term "townhouse or villa house". 28. But where, as in the present case, the Council has first concluded that the proposed development does not fall within the defined term "townhouse or villa house", it is virtually inevitable that the Council would thereafter conclude that the proposed development falls within the defined term "residential flat". 29. Accordingly, in the present case, as in Clindo, the possible relevance and possible application of the defined term "residential flat" must be explored because of the obvious similarity between that term and the defined term "townhouse or villa house" (in that each term contemplates a development containing multiple dwellings) but even more obviously, because a "residential flat" is a prohibited development within Zone No 2(a1) in terms of the LEP whereas a "townhouse or villa house" is a permissible development in that zone in terms of the LEP. However, and this is the vital rider, any such exploration will necessarily be confined to the elucidation of the meaning of the defined term "townhouse or villa house". 30. The Applicant relies upon the fact that the defined term "residential flat" expressly excludes from its ambit "townhouses or villa homes". 31. However, this feature of the defined term "residential flat" in truth merely draws attention to the differentiating features of the defined term "townhouse or villa house" (compared with a "residential flat"), namely the existence of the following physical characteristics of the multiple dwelling development— (i.) individual entrance to each dwelling; and (ii.) individual open space for exclusive use of the occupants of each dwelling. 32. It is the existence of these physical characteristics that brings a dwelling in a building containing multiple dwellings within the defined term "townhouse or villa house" (and hence excluded from the defined term "residential flat"). Conversely, it is the absence of those same characteristics that brings a dwelling in a building containing multiple dwellings within the defined term "residential flat". (In passing, it should be noted that the definition of "townhouse or villa house" does not require the multiple dwellings to be contained in a single building. However, clearly the defined term extends to such a situation.) 33. However, there is greater force in the Applicant's submission that to the extent that the Council's argument relies upon an acceptance by the Court of assumed characteristics of access and entrance arrangements pertaining to a residential flat building, the argument is not supported by evidence. Even if the evidentiary lack in the Council's argument were a matter for "judicial notice" under the Evidence Act 1995 Pt 4.2 (and I do not think that it is), there would remain an obvious weakness in the Council's argument that the defined term "residential flat" is entirely silent on the matter of physical arrangements for access and entrance. Once this vital fact is appreciated, there appears to be little or no force in the Council's argument that the Court would regard the access and entrance arrangements depicted in the proposed development as being typical of those arrangements commonly found in residential flat buildings. 34. However, this weakness in the Council's argument does not mean that it becomes unnecessary for the Court to consider either the meaning and effect of the requirement in the definition of "townhouse or villa house" that each dwelling have an individual entrance or the ultimate question of whether the proposed development satisfies or fulfils that particular requirement. 35. Firstly, I must consider the question of interpretation of the particular requirement in the defined term. 36. In my judgment, the expression "individual entrance" involves non-technical words and the meaning of the expression is one that reflects and accords with the ordinary and natural meaning of the words: cf Clindo. 37. Secondly, the requirement applies to each dwelling in the building (containing multiple dwellings) and not to the building: cf Clindo. 38. I have considered the reasons for judgment in Clindo and am of the opinion that they are readily applicable to the question of interpretation posed in the present case. 39. In so concluding, I of course accept the Council's submission that the facts in Clindo are not the same as the facts of the present case. Likewise, I readily accept the submission that the result in Clindo (the ultimate finding of fact that the proposed development was "attached dwellings" and not a "residential flat building") does not provide the solvent to the task of ultimate fact finding raised in the present case. However, I am of the opinion that the result in Clindo provides an apt illustration of the application to similar material facts (as those in the present case) of a similar interpretive solution to a similar statutory definition (as that in the present case). 40. Accordingly, I venture to repeat the following passages from Clindo which indicate both the interpretation adopted, and its application to the facts of that case: The principal argument advanced by the Council is that the first limb of the definition of attached dwellings requires separate entrance to the building for each of the proposed dwellings and that this requirement is not satisfied by the proposed development because the proposed pedestrian access into the building from Kurraba Road is a common entrance serving pedestrians to all six dwellings, and that feature of common access is sustained in other access features of the proposed development, namely: (i) the lift and stairs; and (ii) the open air landings (serviced by the lift and stairs) leading to ultimate entry into each of the dwellings (These features of the pedestrian access and entry arrangements are illustrated by the development application drawings ( Exhibit 2 ) and are verbally described in paragraphs 9 to 12 (inclusive) of the statement of facts (Exhibit 4) . I do not think the Council's argument can be sustained. It depends upon an interpretation of attached dwellings that reads into it the words to the building immediately after the words an individual entrance. In my judgment, the requirement of each dwelling having an individual entrance is not a requirement for an entrance into the building (that contains the dwellings) but is a requirement for entrance into each dwelling. This interpretation accords with that proffered by the Applicant. It reflects the ordinary meaning of the words of the definition. (There was no suggestion that the word bears any other meaning.) The Council's argument against this interpretation is based upon the suggestion that the interpretation merely states the obvious, namely every dwelling must have an entrance eg. a door between the inside and outside of the dwelling. However, the interpretation that I have accepted does not necessarily mean that the entrance to each dwelling is the front door to that dwelling. No doubt, the front door to a dwelling is very much part and parcel of the entrance to the dwelling. However, the term may be extended to include the immediate approach to the dwelling. In the present case, the entrance to each dwelling may be taken to include the open courtyard (at the three different levels) providing access from the lift or stairs to the dwellings located at the different levels (three at the lowest level, one at the intermediate level and two at the highest level). The interpretation that I have adopted accords with the ordinary understanding of the expression the entrance to a dwelling. Take for example, a dwelling-house erected on a typical suburban residential lot. The entrance to the dwelling-house would not normally be encountered upon first entering the lot eg. when entering the front gate, or by traversing the pathway leading to the front door. The entrance would be encountered when the pedestrian approaches the front door and its immediate physical context e.g. a verandah, a porch etc. However, access to this point from the moment the pedestrian enters the lot would not ordinarily be regarded as the entrance to the dwelling-house as opposed to entry upon the lot or the premises. So in the present case, I would regard the common pedestrian access via the underground tunnel entered immediately upon entering the common pedestrian door provided in the high wall bounding the Kurraba Road frontage as access, in contradistinction to, the entrance to each dwelling. Likewise, I would regard the common use of the lift and stairs to each of the three residential levels as being part of the access, and not part of the entrance. The entrance to each dwelling is not, in my judgment, encountered in the proposed development until the pedestrian is located on the open courtyard providing the various passageways to the front door of each dwelling. The distinction between access and entrance is illustrated by the plan of landscaped area appearing at p.6 of the Council's Development Control Plan No. 1 (Exhibit C) (DCP). For all the foregoing reasons, I must reject the Council's submission that the requirement for each dwelling to have an individual entrance is not satisfied in the present case by virtue of the common access arrangements within the building (i.e. the underground tunnel from Kurraba Road frontage, the lift and the stairs). In my judgment, the individual entrance requirement to each dwelling is satisfied by the provision within the proposed development of the entry courtyards serving each residential level. In passing, I would note that if the Council's interpretation were adopted, it would also mean that the common entry from Kurraba Road to the underground carparking provided within the building would not satisfy the requirement for individual entrance. The result of such an interpretation would be to require six separate entries to the underground carparking, a result that would confound good planning and design both from a planning and traffic safety perspective. It is true that the Council's argument did not focus upon this aspect of the proposed development. However, there would be no good reason, in my opinion, to distinguish between pedestrian and vehicular entrance. In my judgment, an interpretation of the requirement that avoids such an inconvenient, if not absurd result, is to be preferred where an alternative interpretation is fairly open cf. Cooper Brookes (Wollongong) Pty Ltd v. Commissioner of Taxation (1981) 147CLR 297 at 304/305 per Gibbs CJ. 41. Returning to the present case, I would adopt the same interpretation as was adopted in Clindo to the requirement that each dwelling have an individual entrance. As in Clindo , I would differentiate between the access to and the entrance to, each dwelling. This means that the existence of common accessways (comprising the pathway and the common space or landing at upper ground floor level so far as concerns pedestrian access , and the common driveway into the car accommodation located at the lower ground level, so fas as concerns vehicular access ) does not per se deprive the development of the characteristic or quality of each dwelling having an individual entrance . 42. As in Clindo, I would hold that that the requirement for individual entrance to each dwelling involves something more than the requirement that each dwelling have its own front door, but that it obviously includes that physical feature and also extends to the immediate approach to the front door of each dwelling. 43. Having established the meaning of the requirement that each dwelling have an individual entrance, it is now necessary to apply that meaning to the facts of the present case. 44. In the present case, I find that the entrance to each dwelling includes the common space or landing at the upper ground floor level. This is because the front door to dwellings numbered 1, 2, 3 and 4 directly opens off that space or landing, as do the doors to the three enclosed and isolated stairways leading to each of the three dwellings located at the lower ground floor level . 45. As noted in the agreed facts, the common space or landing is open aired. It also provides a physical separation at the upper ground floor level and first floor level between that part of the building that comprises dwellings 1 and 2 and that part of the building that comprises dwellings 3 and 4. 46. The distance of that separation ranges from 2.5 m between dwellings 1 and 3, to 5 m between dwellings 2 and 4. The floor area of the common space or landing is at a split level - the upper level adjacent to dwellings 1 and 3, having an area of some 15 m2 and the lower level (1 m below the upper level and separated therefrom by 5 steps) adjacent to dwellings 2 and 4 being some 40 m2. 47. The question (of ultimate fact) for decision is whether these physical arrangements satisfy the requirement that each dwelling have an individual entrance. 48. The answer to the question obviously is made the more difficult by virtue of the physical constraint flowing from the fact that all pedestrian access to all seven dwellings will utilise the common space or landing. This means that the common space or landing area realistically has a dual function (i) as an essential part of (ie the immediate approach) the entrance to each dwelling and (ii) as an essential part of the pedestrian access system within the development site to each dwelling. 49. Little problem, in my judgment, is encountered with this dual function at the lower level which is the more generously proportioned part of the common space or landing. However, the dual purpose function at the upper level adjacent to units 1 and 3 presents a difficulty of physical constraint, not only because that part of the common space or landing is much less generously dimensioned (2.5 m x 6 m) than the part at the lower level (5 m x 8 m), but because it obviously will be exposed to increased levels of pedestrian traffic because pedestrians accessing all seven dwellings must necessarily pass along this section of the common space or landing. 50. To this extent, the "dwelling entrance" function of the common space or landing must be somewhat compromised. Does this fact negate the quality of the space or landing also functioning as an integral aspect of the required individual entrance to each dwelling? 51. After anxious consideration, I have concluded that it does not. I find that the physical arrangements of the common space or landing, satisfy the requirement that each dwelling have an individual entrance. 52. In so finding, I do not think the fact that the common space or landing is a common area (in the sense that it is available for pedestrian access to all of the dwellings in the building) deprives the space of the physical capacity or function of contributing to the individual entrance to each dwelling, ie serving as the immediate approach to the front door of each dwelling. In other words, the fact that the space provides common access to all of the dwellings does not mean that it therefore provides a common entrance, rather than an individual entrance, to each of the dwellings. Again, it is necessary to distinguish between the separate notions of access and entrance that I have earlier expounded. 53. For all the foregoing reasons, I find that the proposal satisfies the requirement of the definition of "townhouse or villa house" in the LEP that each dwelling have an individual entrance. Accordingly, I hold that the proposed development is for the permissible purpose of "townhouses or villa houses" within the meaning of the LEP. 54. For the same reasons that have led to that conclusion, I would likewise hold that the proposed development is for the permissible purpose of "townhouses" within the meaning of the draft LEP. 55. As I have earlier noted, the Applicant concedes that the proposed development does not fall within the definition of "villa house" in terms of the draft LEP. E. CONCLUSIONS AND ORDERS 56. For all the foregoing conclusions, I would answer the preliminary questions as follows: 57. The proposed development as depicted in the plans (Exhibit 1) is permissible development in terms of the LEP, being properly categorised as "townhouses or villa houses", and is also permissible development in terms of the draft LEP being properly categorised as "townhouses". ANNEXURE 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.