Land and Environment Court of New South Wales CITATION : Adjani Corporation Pty Limited v North Sydney Council [2000] NSWLEC 73 APPLICANT: PARTIES : Adjani Corporation Pty Limited RESPONDENT: North Sydney Council FILE NUMBER(S) : 10635A of 1999 CORAM: Lloyd J Construction & Interpretation - Section 56A Appeal :- Section 56A Appeal:- construction of cl 13 KEY ISSUES: North Sydney Local Environmental Plan 1989 - whether error of law or error of fact in the application of such clause Construction & Interpretation:- "site" LEGISLATION CITED: Land and Environment Court Act 1979 s 56A North Sydney Local Environmental Plan 1989 cl 13 (1), (2) Azzopardi v Tasman UEB Industries Limited (1995) 4 NSWLR 139; CASES CITED: City of Enfield v Development Assessment Commission [2000] HCA 5, 74 ALJR 490; Edward Listin Properties Pty Limited v North Sydney Council [1999] NSWLEC 269 unreported; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 DATES OF HEARING: 11/04/00 DATE OF JUDGMENT: 06/20/2000 APPLICANT: W R Davison SC SOLICITORS: McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT: P R Clay (barrister) SOLICITORS: Malleson Stephen Jaques JUDGMENT: 1 IN THE LAND AND Matter No: 10635 of 1999 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 20 June 2000 Adjani Corporation Pty Limited Applicant v North Sydney Council Respondent REASONS FOR JUDGMENT 1. This is an appeal by the respondent ("the Council") under s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner, such appeal being limited to a question of law. The Commissioner had allowed an appeal under s 97 of the Environmental Planning and Assessment Act 1979 and granted development consent for the part demolition of an existing dwelling house, additions to the same dwelling house, the subdivision of the property into three lots and the construction of a new dwelling on each of the additional two lots. 2. The subject land is at present a single allotment with a dwelling house upon it. The applicant proposes to demolish the rear part of the dwelling which would otherwise encroach on to the two additional lots to be created at its rear. The existing house is to have a new wall on the new common boundary to the proposed two additional lots. It is proposed that the existing dwelling house have a new attic with dormer windows on three sides. 3. The appeal turns on clause 13(1) and (2) of the North Sydney Local Environmental Plan 1989 , which is relevantly as follows: 13(1) Subject to subclause (2), a building shall not be erected on a site in Zone No 2(a), 2(b), 2(c), 2(d) or 2(f) where any part of the building will exceed a building height plane projected at any point from any boundary site. (2) A building may be erected which does not comply with the building height plane provided the building, when erected - (a) will not materially increase the overshadowing of adjoining properties; (b) will not materially reduce the level of privacy enjoyed by adjoining properties; (c) will not materially obstruct views from adjoining buildings; and (d) will not materially reduce the level of daylight and ventilation to existing development, and no well founded objection is raised to the proposed building. 4. The reference in subclause (1) to " any boundary of the site " requires reference to the definition of " site " (in clause 5): "site" means the land to which an application for consent under the Act relates, excluding any land upon which the development to which the application relates is not permitted by or under this local environmental plan ; 5. According to its grounds of appeal, the Council alleges that the Commissioner erred in law in the following respects: The Commissioner erred in law in that: 5.1 The Commissioner granted development consent for a development which, on the proper construction of clauses 13(1) and 13(2) of the North Sydney Local Environmental Plan 1989, was prohibited from being carried out. 5.2 The Commissioner misdirected himself as to whether clause 13(2) of North Sydney Local Environmental Plan 1989 applied in relation to the lots to be created by the proposed development. 5.3 Alternatively, the Commissioner's finding that there would be no material overshadowing impact on Lots 1 and 2 of the proposed (sic) was unreasonable, being a finding without which clause 13(2) could not have been applied. 6. The principal submission of Mr P R Clay, appearing for the Council, is that the Commissioner failed to consider the exceedence of the building height plane resulting from the alterations to the existing building, particularly in relation to the proposed internal common boundary to be created by the proposed subdivision. In Mr Clay's submission the reference in clause 13(1) to " any boundary of the site " includes a reference to the proposed internal boundaries, part of the development application. Mr Clay accepts that this involves a departure from the literal meaning of the word " site " as defined in clause 5, but in his submission the purpose of clause 13 and the context require such a departure because (a) clause 13 is directed to the impact of buildings and there is no logic in excluding from consideration " internal" impacts; and (b) if it were otherwise then there would be a different outcome depending upon whether a development for subdivision and for the erection of buildings is carried out by way of one application or two. 7. Mr W R Davison SC, appearing for the applicant, submits that the reference in clause 13(1) to " any boundary of the site " is a reference to the existing rather than the proposed boundaries and this follows from the defined meaning of the word " site ", so that the appeal must fail. In Mr Davison's submission this would be consistent with the purpose of the building height plane requirements in clause 13(1), which is to protect the amenity of existing buildings. 8. It is necessary to turn to the Commissioner's decision. The Commissioner appears to have accepted the proposition that the building height plane must be determined by reference to the boundaries of the internal lots within the proposed subdivision. (He referred in this context to Edward Listin Properties Pty Ltd v North Sydney Council , NSWLEC, Talbot J, 10 December 1999, unreported.) A building height plane diagram was tendered to indicate the breach of the building height plane. According to the Commissioner, the diagram provided an indication of the "internal" amenity impacts. The diagram clearly shows that both the new wall to the existing building adjacent to the proposed internal boundary and a dormer window infringed the building height plane. The Commissioner's conclusions are expressed in the following paragraphs: 49. Insofar as Mr Ingham admitted that the shadowing of the courtyards was not ideal, his evidence was that the breach of the Building Height Plane was due to the proposed dormer window and that was of a minor nature which he thought was satisfactory for the area. 50. My assessment of the evidence was on the basis that part of the existing house would be removed so that the new building work in breach of the Building Height Plane was the dormer window. I then relied on Mr Inghams (sic) evidence that this breach was of a minor nature which still enabled the future occupants to have a reasonable level of amenity. In accepting that the extent of this breach is minor, my ultimate conclusion is that it does not materially increase the overshadowing of the adjoining properties, i.e. the proposed internal courtyards, so that the provisions of cl 13(2) of the LEP are met, in my opinion. 9. The first question is whether the reference in clause 13 to any boundary of the site is a reference only to the boundaries in the unsubdivided form of the site, or whether it includes the proposed internal boundaries. Clause 13 was considered by Talbot J in Edward Listin Properties Pty Ltd v North Sydney Council, in which there was a proposal to demolish two existing dwellings, subdivide the land into ten lots and erect ten individual dwellings on the respective lots. As to clause 13 Talbot J said: 49. The Court agrees with Mr Parry's submission made on behalf of the council that the impacts from a breach of the building height plane standard are relevant to the internal aspect of the site as well as external properties. This is particularly so where subdivision is proposed. The building height plane must therefore be determined by reference to the boundaries of the internal lots within the proposed subdivision. 50. The better view of cl 13(2) is that it does not afford an exemption in respect of internal impacts. A well founded objection can only be based upon a direct effect upon the amenity of the objector. However, there is no SEPP 1 objection in respect of the building height plane with reference to the internal boundaries of the 10 separate lots. Even in the absence of a well founded objection, it would appear that cl 13(2) requires that each one of the matters (a) to (d) must be satisfied. 10. I am prepared to infer, although Talbot J does not expressly say so, that his Honour's discussion in paragraph 49 of the judgment is a reference to subclause (1) of clause 13. 11. Mr Davison submits that Talbot J's judgment ignores the definition of " site ", which definition excludes the boundaries of any internal subdivision which is part of the development application. There is no reference in Talbot J's judgment to the defined meaning of " site ". The reasoning by which Talbot J arrived at his conclusion is not disclosed. That is to say, Talbot J, if he considered the defined meaning of " site " does not state why the defined meaning does not apply to clause 13. In the absence of such reasons Mr Davison submits that Talbot J's judgment should not be followed and the statutory definition of " site " should apply, particularly since Talbot J gave no reasons for his conclusion. 12. I am not prepared to depart from the views of Talbot J which I have set out in paragraph 9 above. I am not prepared to do so for two reasons. The first is that judicial comity requires me not to do so unless the judgment is demonstrably wrong. The second is that I am, in any event, inclined to come to the same conclusion. That is to say, I do not think that the conclusions of Talbot J are demonstrably wrong. My reasons for coming to the view that I have are as follows: (a) definitions that occur in an Act or instrument apply except insofar as the context or subject matter otherwise indicates or requires (s 6 Interpretation Act 1987); (b) in the interpretation of an Act or statutory rule (such as an environmental planning instrument), a construction that would promote the purpose or object underlying it (whether or not expressly stated therein) must be preferred to a construction that would not promote that purpose or object (s 33 Interpretation Act 1987); (c) although the purpose or object of clause 13 in the present case is not expressly stated therein, it can readily be inferred that it is to limit the impact of buildings upon the amenity of adjoining properties. Clause 13 must be read as a whole and the inference which I have drawn appears from the considerations set out in subclause (2), which sets out the circumstances under which a building may be erected and which does not comply with the building height plane; (d) it would be illogical if such amenity considerations are to be taken into account only in relation to properties outside the development site but not to proposed development within the site; (e) a different outcome could be achieved if the development was done in separate stages: for example, by an application for subdivision followed by a separate application for the erection of buildings. It would be incongruous, in my view, if clause 13 were to apply in such a case but not to apply in the case of a combined development application, as the present; (f) properly construed, the word " site " fits comfortably with the notion that each proposed lot in this case on which it is intended to erect a dwelling is a " site " for the purpose of clause 13. 13. It follows that I am unable to accept Mr Davison's submission that the reference in clause 13 to " any boundary of the site " cannot be a reference to the proposed internal boundaries of the proposed subdivision. 14. As I have noted above (paragraph 8), the Commissioner referred to Talbot J's judgment and appears to have accepted the preferred construction of clause 13. Mr Clay submits that the Commissioner then fell into error by limiting his considerations to only one impact, namely the dormer window. In Mr Clay's submission, the Commissioner ignored the fact that the new wall of the existing dwelling adjacent to the proposed common boundary is itself the erection of a building and which infringes the building height plane. 15. The passages of the Commissioner's decision which I have set out (in paragraph 8 above) confirm Mr Clay's submission. The Commissioner only refers to the dormer window as being the new building work which is in breach of the building height plane. It is obvious, however, from an examination of the building height plane diagram which was tendered in evidence that another part of the building, namely the new wall adjacent to the common boundary, will also be in breach of the building height plane. The Commissioner was clearly in error in holding that the breach of the building height plane was due only to the dormer window. 16. The Commissioner's error was that he made a wrong finding of fact. There is, however, no error of law in simply making a wrong finding of fact ( City of Enfield v Development Assessment Commission [2000] HCA 5, 74 ALJR 490 per Gaudron J at [44] and [58]). Moreover, even perverse or unreasonable findings of fact do not constitute errors of law ( Randwick Municipal Council v Manousaki (1988) 66 LGRA 330, per Clarke JA at 333). Even if the reasoning by which a court reached its conclusion of fact was demonstrably unsound this would not amount to an error of law ( Azzopardi v Tasman UEB Industries Ltd (1995) 4 NSWLR 139, per Glass JA at 156; Manousaki , at 334). 17 . Neither did the Commissioner misdirect himself as to whether sub-clause 13(2) applied in relation to the lots to be created by the proposed development. As I have noted (in paragraph 8) above the Commissioner appears to have accepted the view of Talbot J in Edward Listin Properties Pty Ltd v North Sydney Council that sub-clause 13(2) is to be applied to " internal " impacts. 18. As I have said, the Commissioner made a wrong finding of fact. This Court on an appeal cannot intervene unless a error of law has been demonstrated. An appeal under s 56A of the Land and Environment Court Act does not allow me to correct errors of fact. The Council therefore fails on its first two grounds of appeal. 19. Finally, I note that Mr Clay did not address the Council's third ground of appeal. I suspect that this was because Mr Clay recognised that this ground also raises a question of fact. 20. For the above mentioned reasons I make the following orders: 1. Appeal dismissed. 2. The respondent (the Council) must pay the applicant's costs of the appeal. 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.